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Full text of "Recommendations and Reports - 1992, Volume 2"

Office of the Chairman 

Administrative Conference of the United States 



^iTtfiiiiiiiMirfliiii^/s 



Conference 
of the 
United States 



Recoriiri 
and Reports 



■KiinmiiiMiK 



992 



Volume 




Administrative Conference of the United States 



jhe Administrative Conference of the United States was estab- 
lished by statute as an independent agency of the federal 
government in 1964. Its purpose is to promote improvements in 
the efficiency, adequacy, and fairness of procedures by which 
federal agencies conduct regulatory programs, administer grants 
and benefits, and perform related governmental functions. 

To this end, the Conference conducts research and issues reports 
concerning various aspects of the administrative process and, 
when warranted, makes recommendations to the President, Con- 
gress, particular departments and agencies, and the judiciary 
concerning the need for procedural reforms. Implementation of 
Conference recommendations may be accomplished by direct 
action on the port of the affected agencies or through legislative 
changes. 



Office of the Chairman 

Administrative Conference of the United States 



Administrative 
Conference 
of the 
United States 

Recommendations 
and Reports 

1992 

Volume 



Cite as: 
1992 ACUS 



TABLE OF CONTENTS 

I. The Importance of Studying the Federal Administrative Judiciary 779 

A. Introduction 779 

B. The Constitutional Status of Federal Administrative Judges 781 

C. The Significance and Variety of Decisions Made by the 

Administrative Judiciary 784 

D. The Scope of the Federal Administrative Judiciary 

Covered by This Study' 785 

1. The ALJ in Context 786 

2. The Emerging Category of "Administrative Judge" 788 

E. Rationalizing the Use of ALJs: 

Mixed Signals from Congress and the Courts 790 

1. The Due Process Limits on Decider Impartiality 792 

2. Congressional Reactions to Decider Formality 794 

F. Introduction to Decider Independence 

in the Context of Disability Benefits Determinations 795 

II. Historical Background to This Study 798 

A. The Origins of Hearing Examiners Prior to the 

Enactment of the APA 799 

B. Administrative Law Judges Under the APA^ 803 

C. Immediate Post- APA Developments Affecting 

Hearing Examiners^ 804 

1. Congressional Experimentation with Separation of 

Functions: The Taft-Hartley Act 

and the Communications Act 805 

2. The Recommendations of the Second Hoover 

Commission, Task Force on 

Legal Services and Procedures (1955) 806 

D. Congressional Attitudes Towards the Use of AUs 

During the 1970s 808 



'Parts of this section and sections E and F appeared in Verkuil, Reflections Upon The Federal 
Administrative Judiciary, 39 U.C.L.A. L. Rev. 1341 (1992). 

^The APA employed the term "examiners" when it established the office known today as 
administrative law judge. In 1972 the Civil Service Commission, by regulation, adopted the title 
of administrative law judge. 37 Fed. Reg. 16.787 (1972). In 1978, Congress established the new 
title by statute. Pub. L. No. 95-251 §2(a)(10), 92 Stat. 183 (1978). For convenience, the term 
administrative law judge is used throughout, except where use of the earlier term helps the 
exposition. 

■^e initial appointment "fiasco" is treated, infra, Chapter 11(H). 



772 Verkuil, Gifford, Koch, Pierce, and Lubbers 



E. Evolution of Benefit Adjudication Over Time 815 

1 . Longshore and Harbor Workers Compensation Act and 

Related Legislation 817 

2. Veterans Benefits Distinguished 818 

3. Social Security Disability Adjudication Compared 820 

F. Evolution of Nonbenefit Adjudication Over Time 823 

1 . Use of Intermediate Review Boards 823 

2. The Split-Enforcement Model of Regulation 824 

G. The Growth of Benefit Adjudication 

and the Decline of Economic Regulatory Adjudication as a 
Vehicle for Major Policymaking 824 

1 . The Regulatory Model That Gave Rise to the 

Office of Independent AUs 824 

2. The Growth of Benefit Adjudication 825 

3. TTie Regulatory Model Has Diminished 

with Deregulation 827 

4. Rulemaking as a Principal Regulatory Technique 

and the Problems Afflicting It 827 

5. The Share of ALJs Deciding Regulatory Adjudications 

Has Diminished 828 

6. Benefit Adjudications Predominate 829 
H. The Historical Background to the Selection Process 

and to the Present Protections 

for Independence 830 

1 . The APA on the Selection of Hearing Examiners 832 

2. The Initial Appointment 

"Fiasco" 833 

3. Organization, Appointments, and Evaluations of ALJs: 

Past Studies, Reports, and Recommendations 836 

a. The 1954 Report of the President's Conference 

on Administrative Procedure 836 

b. The 1962 Conference Study 838 

c. The 1969 Conference Study 

and Recommendation 841 

d. The Scalia Approach 842 
III. The Variety of Administrative Adjudications 

and Administrative Judges 843 

A. NLRB/EEOC Enforcement Adjudication 843 

B. Licensing Adjudication by FERC 

and NRC 849 

1. The FERC Adjudication Process 849 

2. The NRC Adjudication Process 850 



The Federal Administrative Judiciary 773 



C. Sanctions and Civil Penalty Adjudication 852 

1. Immigration Adjudication 852 

a. TheDOJAUs 853 

b. Immigration Judges 854 

(i) Deportation Hearing 854 

(ii) Bond Redetermination Hearing 855 

(iii) Exclusion Hearing 855 

c. Asylum Officers 856 

2. Security Clearance Adjudications 857 

3. Merit Systems Protection Board (MSPB) Adjudications 859 

4. Use of Non-ALJ Decisionmakers in Civil Money 

Penalty Proceedings 861 

D. Benefit Adjudication: Social Security and Veterans* Claims 863 

1. The Social Security Administration 863 

2. The Department of Veterans Affairs 863 

3. Benefit Adjudication Process Comparisons 864 

E. Adjudicating Claims Against the Government: 

Boards of Contract Appeals and the Claims Court 866 

1 . Background on Boards of Contract Appeals 

(especially ASBCA) 866 

a. Purposes, Jurisdiction and Organization 866 

b. Role of Under Secretary of Defense 

(Research and Engineering) 867 

c. Procedures Employed 868 

d. Appeals from ASBCA Decisions 869 

e. Statutory Basis for the Appointment of 
Administrative Judges and Hearing Examiners 869 

f. Independence of BCA Administrative Judges 870 

2. Background on the United States Claims Court 871 

3. A Comparison of the Independence of BCA AJs 

and Court of Claims Judges 873 
IV. Empirical Study of the Roles and Attitudes of the 

Federal Administrative Judiciary 876 

A. Methodology 876 

B. Profile and Motivation 878 

1. Background and Training 878 

2. Motivation 882 

3. Qualifications and Selection 888 

C. Habits of Office 890 

1. Preparation 890 

2. The Integrity of the Office 892 

3. Administrative Responsibilities 895 



774 Verkuil, Gifford, Koch, Pierce, and Lubbers 



D. Techniques for Presiding 896 

1. Prehearing 896 

2. Building a Record 899 

3. Conduct of the Hearing 904 

4. Reaching a Decision 907 

5. The Result of the Initial Adjudication 912 

6. Administrative Review Process 913 

E. Across-the-Board Measures of Performance 915 

F. Relationship with Agency Hierarchy and Others in the Agency 916 

1. Structural Relationship 916 

2. Policy Relationship 918 

a. Adequacy of Agency Policy Guidance 919 

b. Interference with Individual Judgment 

in the Name of Policy Dominance 921 

G. Attitude Towards Their Jobs 923 

1. Perception of Their Function 923 

2. Comparison with Other Adjudicators 925 

3. Attitude Towards Proposed Reform Ideas 926 
H. Summary of Observations About Perceived Problems 927 

V. The Selection Process For Agency Adjudicators 931 

A. Development of the AU Selection Process 931 

B. The AU Rating and Appointment Process 939 

1. The Rating Process 939 

2. The Appointment Process 941 

C. Results of the Selection Process— AU Demographics 944 

1. Women and Minorities 944 

2. Recruitment of Attorneys From Private Practice 949 

D. The Selection Process for Non-AU Adjudicators 950 

E. Proposed Modification of the AU Selection Process 954 

1. Streamlining of the Examination 955 

2. OPM'sRole 956 

3. Shifting the Other Parts of the Exam to the 

Hiring Agencies 959 

4. The Role of Veterans Preference in AU Selection 960 

5. Specialized Experience 964 

F. Conclusion 967 

VI. The Scope and Degree of AU and Non-AU Independence 967 



The Federal Administrative Judiciary 775 



A. Advantages of Independence 967 

1. The Constitutional Requirement-- Avoidance of Bias 967 

a. Personal Interest in Case Outcome 969 

b. Personal Bias 971 

c. Prior Exposure to Adjudicative Facts 972 

d. Prior Position on Legal Issues 

or Legislative Facts 973 

e. Separating Functions 974 

2. Greater Public Acceptance 979 

3. Enhanced Status Helps Recruitment 

and Control of Hearings 980 

B. Safeguards of Independence 981 

1. Statutory Safeguards Applicable to ALJs 981 

2. Safeguards Applicable to AJs 983 

C. Potential Adverse Consequences of Independence 985 

1. Scope of Control Over Policy 986 

2. Potential Interdecisional Inconsistency 991 

3. Extent of Control Over Productivity and Quality 992 

D. Agency Power to Constrain ALJ and Non-AU Discretion 993 

1 . Productivity Enhancement Measures 994 
2. Efforts to Assert Control Over Policy Components 

of Adjudicatory Decisions and to Enhance 

Interdecisional Consistency 996 

a. By Legislative Rule 997 

b. By Formal Review 1004 

c. By Precedent 1005 

d. By Interpretative Rule 1005 

e. Informal Pressure 1007 

E. Establishing an Appropriate System of Performance 

Evaluation for AUs 101 1 

1. The Current Prohibition Against Performance 

Appraisal of ALJs 1011 

2. The 1978 GAO Study 1014 

3. Lawsuits By and Against AUs 1016 

4. The Conference Supports Management Norms for AUs 1021 

5. A Proposed Approach 1023 

6. Evaluation of Judicial Performance at the 

State and Federal Level 1027 

7. Conclusion 1031 



776 Verkuil, Gifford, Koch, Pierce, and Lubbers 



VII. Effects of ALJ and Non-AU Decisions 1032 

A. The APA Model 1032 

1. Statutory Interpretation 1033 

2. Policy Decisions 1034 

3. Findings of Fact 1035 

B. Departures from the APA Model 1038 

1. Allocation of Greater Decisionmaking Power to AUs 1038 

2. The Split-Enforcement Model 1040 

3. The Corps Proposal 1041 

VIII. Developing Standards for When to Use AUs as Presiding Officers 1046 

A. The Random Nature Of AU Use 1047 

1. Comparing Deciders in Sanction and Penalty Cases 1048 

2. The Use of ALJs and AJs in the Benefits 

and Licensing Areas 1050 

3. The Use of AUs and AJs in Cases For 

Monetary Damages Against the Government 1051 

B. The Qualified Case for Conversion of AJs to AUs 1052 

IX. Conclusions and Recommendations 1056 

Recommendations 1058 

Appendices 1063 

Bibliography 1121 



Report for Recommendation 92-7 

The Federal Administrative Judiciary 

Paul R. Verkuil, Daniel J. Gifford, Charles H. Koch, Jr. 
Richard J. Pierce, Jr., and Jeffrey S. Lubbers 



This report was prepared for the consideration of the Administrative 
Conference of the United States. The views expressed are those of the 
author and do not necessarily reflect those of the members of the 
Conference or its committees except where formal recommendations of 
the Conference are cited. 



About the Authors 

Paul R. Verkuil 

President, American Automobile Association 

Daniel J. Gifford 

Bobbins, Kaplan, Miller & Cerisi Professor 
University of Minnesota Law School 

Charles H. Koch, Jr. 

Dudley W. Woodbridge Professor 

Marshall-Wythe School of Law 

College of William and Mary 

Richard J. Pierce, Jr. 

Paul J. Kellner Professor 
Columbia University School of Law 

Jeffrey S. Lubbers 

Research Director 
Administrative Conference of the United States 



I. The Importance of Studying the Federal 
Administrative Judiciary 



A. Introduction 

This study was commissioned by the Administrative Conference of the 
United States (the Conference) at the request of the Office of Personnel 
Management (OPM). OPM had both short-term and long-range goals in mind 
when it made its request of the Conference. Its immediate need was for a 
study of the selection and appointment process for administrative law judges 
(AUs). The agency has long been concerned about the criteria used to 
examine candidates for AU positions, and is interested in receiving objective 
suggestions for change from outside the agency. This study took on greater 
significance when OPM said it was closing the AU register until the study is 
completed so as to incorporate any suggested changes in a new register. ' 

At the same time, OPM requested a broad examination of the current and 
future role of the AU in the administrative process. Director Newman 
requested that the Conference include in its study "a clear delineation of the 
current 'landscape' of administrative adjudication; an analysis of the evolving 
role of the AU and other agency adjudicators from 1946 to the present," as 
well as an evaluation of agency adjudication procedures and a survey of agency 
and practitioners' attitudes towards Administrative Procedure Act (APA) 
adjudicators.^ The Conference responded by appointing a team of consultants 
(the authors of this study) to conduct the work requested by OPM. 

In preparing this study the team received invaluable advice and guidance 
from Bill Olmstead, Gary Edles and Nancy Miller of the Conference staff and 
from John Frye, formerly an administrative judge at the Nuclear Regulatory 
Conmiission (NRC) (now an AU at the Occupational Safety and Health 
Review Commission (OSHRC)), who had earlier completed a report for the 
Conference on the use of administrative judges (non-AUs) in the 



^See memorandum to Heads of Departments and Agencies employing AUs from Constance 
Berry Newman, Director of OPM, July 9, 1991. The Director noted that the 700 eligible 
candidates on the register would meet all hiring needs for the next year or so. 



780 Verkuil, Gifford, Koch, Pierce, and Lubbers 



administrative process.^ In addition to those mentioned, the team was aided by 
numerous government officials in the agencies studied and by a group of AUs 
and administrative judges who served as commentors on outline drafts of the 
study. 

This study has tried to respond to the short- and long-term needs stated in 
the OPM /Conference agreement. It takes a broad view of the administrative 
judiciary and its changing role in the administrative process. After an 
extensive review of the relevant historical background in Chapter II, the range 
of administrative deciders is considered and the traditional, AU -conducted, 
formal hearing process is set in context against the panoply of federal 
administrative decisions (Chapter III). To learn first hand about the 
qualifications, aspirations and role of many varieties of "administrative 
judges," detailed surveys were made of a broad sample of the universe of 
deciders. The results of this survey, presented in Chapter IV, tell us much 
about what has heretofore been a largely anonymous corps of deciders. The 
AU selection process is described in detail in Chapter V, and Chapter VI 
addresses the important issue of the scope and degree of decisional 
independence. Chapter VII discusses the APA model of adjudication and 
departures from it, and factors for using AUs as presiders and deciders are 
sketched out in Chapter VIII. 

The study contains reconmiendations that would, if adopted, have an 
immediate and precise effect on the OPM/AU selection process. In these 
recommendations, OPM can fmd suggestions for changing not only the criteria 
for AU selection, but also for shifting the allocation of agency responsibility 
for making the selection itself. Proposals are also advanced to improve the 
current limited system for oversight of AU performance. This study also 
ranges into far more extensive (and therefore more tentative) recommendations 
concerning the appropriate role of AUs and other administrative deciders in 
the future. An attempt has been made throughout to examine and bring more 
regularity to the existing crazy quilt of decider qualifications and adjudicatory 
responsibilities. 

TTie theme of this report is that addressing issues about the AU selection 
process and devising an appropriate approach to performance evaluation can 
substantially resolve agency concerns about increased use of AUs, and can 
promote uniformity and consistency in the administrative process. 

It is hoped that this study will enlighten and aid the agencies. Congress and 
the Executive branch in their decisions about using administrative law judges. 



^See Fryc, A Survey o/Non-AU Hearing Programs in the Federal Government, Report to the 
Administrative Conference (Aug. 1991), reprinted in 44 Admin. L. Rev. 261 (1992) (hereinafter 
Frye Report). 



The Federal Administrative Judiciary 781 



Throughout this study the team members were consistently impressed by the 
professional qualities of the federal administrative judiciary, broadly defined. 



B. The Constitutional Status of Federal Administrative 

Judges 

This study uses the term "federal administrative judiciary" to highlight both 
the significance of the deciders involved and the scope of their decisionmaking 
mandate under our federal system. While they are distinct from our federal 
judiciary in fundamental respects, these administrative deciders, whether they 
have the statutory appellation of administrative law judge or are known 
generally as administrative judges, are nevertheless a vital part of the federal 
decision system. Without them the federal judiciary would be unable to fulfill 
its constitutional function. 

The sheer volume of the administrative caseload—which dwarfs that of the 
federal court system—requires that federal administrative judges of whatever 
label continue to bear the initial brunt of the federal decision workload. The 
federal court system would be unable to maintain its primary role of 
constitutional and statutory interpretation without an extensive administrative 
decision system. For this reason, suggestions for reform of the federal court 
system have invariably moved in the direction of adding to the federal 
administrative workload, not detracting from it.^ 

But there are continuing pressures— that are difficult to overcome— to 
expand federal court jurisdiction over administrative functions. A few years 
ago the issue before Congress was whether to provide judicial oversight of the 
Veterans Administration (VA) disability benefits program, which had 
theretofore avoided judicial scrutiny. Despite ambivalence on the part of the 
executive and judicial branches,^ Congress did provide for limited judicial 
review of Veterans Administration (now Department of Veterans Affairs 
(DVA)) disability decisions.^ 

One of the constant themes in discussions of judicial branch versus 
executive branch (or administrative) decisionmaking is that of first class and 



^Much of the attention for shifting judicial workload to the administrative process has 
involved the social security disability system, which has a heavy impact on the federal district 
courts. See Report of the Federal Courts Study Committee 17-18, 28, 55-59 (April 2, 1990) 
(Advocating creation of an Article I Court of Disability Claims). 

^The Department of Justice convened a conference in the role of the courts, with judicial as 
well as executive branch members, to try to rationalize the pressures to expand federal court 
jurisdiction. 5<rtf Council on the Role of the Courts ( ). 

^See discussion in Chap. ni(D)(3) injra. 



782 Verkuil, Gifford, Koch, Pierce, and Lubbers 



second class "justice. " The implication is that somehow federal administrative 
justice cannot measure up to that provided by the federal courts. While no one 
can gainsay the value of the federal judiciary, there is much also to be said for 
the federal administrative judiciary. In their respective spheres of 
responsibility an argument can be made that administrative deciders are equal 
to or even superior to federal judges. It is not heresy to suggest that 
administrative deciders with extensive subject matter expertise may have a 
decisionmaking edge. 

Article III requires, of course, that the judicial power of the United States 
be located in Courts whose judges enjoy life tenure and protection against 
reductions in salary.^ The Constitution also recognizes that Congress may 
create "legislative" courts that lack the guarantees of independence accorded to 
the judicial branch. These courts are created pursuant to Congress' power in 
Article I. In addition to Article I courts, such as the Tax Court and Claims 
Court, Congress also has the power to create administrative agencies whose 
judges are the focus of this study. These agencies have time-honored roles to 
play in a parallel system of justice that is subject to only limited judicial 
oversight.* For the purposes of this study, the emphasis will be placed not 
upon the agencies themselves but upon the administrative deciders who work 
for the agencies. These deciders serve as a constant challenge to the role of the 
federal courts established pursuant to Article III. 

Ever since Crowell v. Benson,^ the role of an agency and its administrative 
deciders has been analogized to that of judicial adjuncts like masters, 
commissioners and bankruptcy judges. The constitutional issue has been how 
far the federal courts must go in reviewing the decisions these agencies render. 
In the development of this doctrine the courts gradually provided increased 
recognition to the role and status of administrative law judges. '° While it is 
true that administrative deciders have the benefits of neither the life tenure nor 
presidential appointment accorded federal judges," they have developed other 
attributes of independence. 



^U. S. Const, Art. HI, Sec. 1. (Life tenure is subject of course to the requirement of "good 
behavior" .) 

^liere has long been a question of how far the federal courts must go to oversee the 
decisions of administrative agencies and Article I tribunals. See Fallon, Of Legislative Courts, 
Administrative Agencies, and Article III, 101 Harv. L. Rev. 915 (1988). 

*285 U.S. 22, 51 (1932). See Fallon, supra note 8, at 924-25. 

^^See Butz v. Economou, 438 U.S. 478 (1978). 

"When the Administrative Procedure Act was created in 1946, presidential appointment of 
what were then called "hearing examiners" was specifically rejected. See discussion in Chapter 
n(H). 



The Federal Administrative Judiciary 783 



Indeed, it might be said that the administrative deciders rendering decisions 
for the agencies and Article I courts have come to enjoy greater degrees of 
independence than was contemplated by the APA in 1946. It is now possible 
to say that some administrative deciders—notably ALJs— enjoy protection of 
tenure that render them almost as independent as their more heralded 
counterparts on the federal bench. 

In a recent opinion, the Supreme Court emphasized that administrative 
deciders employed by the Tax Court have important roles to play under the 
Constitution. '2 In Freytag v. CIR, the Court held that special trial judges~and 
perhaps by extension administrative judges in all agencies with comparable 
responsibilities— are "inferior officers" who must be appointed pursuant to the 
Appointments Clause.'^ Under that clause, officers must be appointed by 
"Heads of Departments" or "Courts of Law. " In a case of first impression, the 
Supreme Court decided that the tax court was a court of law under the 
Constitution. By so doing, the Court established that the term "Courts of 
Law" was not limited to those courts established under Article III.'^ This 
interpretation was challenged by some members of the Court, '^ but the 
essential point remains: many administrative judges, whether they be labeled 
ALJs or something else, are now constitutionally recognized "officers. " 

Administrative adjudicators are therefore a category of constitutional 
decider worthy of sustained examination and even renewed respect. As this 
study will demonstrate, there is a cadre of federal administrative deciders 
working quietly and even anonymously that deserves recognition for 
performing a critical part of the adjudicative work often thought to reside 
solely in the federal courts. This study is about the status of administrative 
judges as much as anything. How they are selected, treated, perceived, 
rewarded and managed will affect what kind of judicial system we ultimately 
deserve. They cannot be ignored if we are to understand how our government 
works. 



'^Freyug V. CIR, 111 S. Cl. 2631 (1991). 

'^Art. n, Sec. 2 cl. 2. 

'^111 S. Cl. at 2644. Whether administrative agencies, as opposed to Article I courts, may 
also be labeled "Courts of Law" depends upon whether they play an exclusively judicial or 
adjudicative role. See id. at 2645. Some agencies might be disqualified on this standard because 
they engage in significant amounts of rulemaking, a legislative function. 

•^Justice Scalia would have called the Tax Court chief judge a "Head of Department" rather 
than accept the majority's court of law analysis. Id at 2650-56. 



784 Verkuil, Gifford, Koch, Pierce, and Lubbers 



C. The Significance and Variety of Decisions Made by the 
Administrative Judiciary 

The federal judiciary and the federal administrative judiciary can be 
compared at many levels. But first they must be defined. The federal 
judiciary as used in this study includes the judicial adjuncts like masters and 
bankruptcy judges who help district judges in their work. Administrative 
judges (AJs) is a term used both to distinguish non-AUs from AUs and to 
refer to the universe of administrative deciders, depending on context. 

The fact that administrative judges sit in agencies that decide large numbers 
of cases that, but for their intervention, would otherwise fall to the federal 
judiciary is a significant measure of the relationship. But the kinds of cases 
decided also bear comparison. In many respects, the adjudicative caseload of 
federal agencies and departments, which is managed at the hearing stage by 
administrative judges, looks much like the cases that arise in the federal courts. 

Obviously agencies and AJs do not decide criminal cases; under our 
Constitution only the federal (or state) courts may act to deprive persons of 
physical liberty. But administrative agencies do make many determinations 
that affect a person's liberty and property interests. These cases are comparable 
to those that appear as an initial matter on the federal courts' civil docket. 
Moreover, within the federal administrative scheme, these case types may be 
heard initially by either AUs or the amorphous category of administrative 
judges. While AUs might be thought to be to AJs as federal judges are to 
magistrates, there seems to be no pattern to the kinds of cases AUs decide. 
While it might be argued that the more independent and better-compensated 
AUs should be reserved for the cases that implicate more substantial 
individual interests, in practice this does not necessarily occur. To establish 
these hypotheses, types of cases need to be set against qualifications of 
administrative judges. 

The cases decided by administrative agencies can be ranked in terms of the 
importance of individual interests'^ in the following way: (1) enforcement, 
penalty or sanction cases; (2) entitlement or benefits cases; (3) regulatory, 
ratemaking and licensing cases; and (4) contract claims against the 
government. These categories reflect a hierarchy of individual interests, yet 
each is decided by administrative judges with a variety of qualifications. In 
the first category are the traditional independent agency enforcement actions 
that involve formal APA hearings before AUs (such as in proceedings at the 
Federal Trade Commission (FTC)). But this category also includes status 



'^The practice of evaluating interests and procedures in administrative decisions has been 
done for years. See Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975); Verkuil, 
A Study of Informal Adjudication Procedures, 43 U. Chi. L. Rev. 739 (1976). 



The Federal Administrative Judiciary 785 



determinations by agencies such as the Department of Justice in immigration 
matters, or the Department of Defense (DOD) in security clearance matters, 
where neither APA formal hearings nor AU deciders are currently required. 
While the individual interests at stake are not as great, entitlement or benefits 
cases are also divided in their use of formal procedures or AU 
decisionmakers. The Social Security Administration (SSA), for example, 
employs the largest (by far) group of AUs to decide its cases, whereas the 
Veterans Administration decides similar cases without the use of AUs.*^ 

In the regulatory or licensing category the variety is virtually infinite. 
Relative formality reigns in major licensing cases before the Federal Energy 
Regulatory Commission (FERC) and other independent agencies where ALJs 
are active; in other agencies, such as the Nuclear Regulatory Commission 
(NRC), licenses are issued without AUs presiding; in still others, such as the 
Department of Agriculture, procedural and decider informality is common.'* 
In the fourth category, claims against the government, the Boards of Contract 
Appeals and the Courts of Claims decide similar cases with varying degrees of 
decider formality. 

In each of these categories, substantial private interests are adjudicated in a 
variety of procedural formats with AUs presiding in some, and AJs presiding 
in others. It is one of the purposes of this study to understand these 
differences and suggest ways to rationalize them~at least with regard to the 
kind of deciders involved. Chapter III is devoted to explaining the case types 
introduced here. 



D. The Scope of the Federal Administrative Judiciary 
Covered by This Study'^ 

To define the universe of the administrative judiciary, some limits must be 
placed on the scope of inquiry. At the outset, the study must limit itself to 
those administrative judges—whether labeled AUs, AJs, hearing examiners or 
something else— who actually preside at some kind of hearing, whether formal 
or informal.^ Excluded from this study are the millions of decisions rendered 



^''See Chapter 111(D) injra. 

^^See Frye Report 83-93 for a full discussion. 

'^arts of this section and sections E and F appeared in Verkuil, Reflections Upon The 
Federal Administrative Judiciary, 39 U.C.L.A. L. Rev. 1341 (1992). 

^See Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975) (defining the 
components of informal hearings). There has been some scholarly study of the ALJ, notably that 
of now Justice Scalia and Professor Rosenblum. See, e.g., Scalia, The AU Fiasco-A Reprise, 47 
U. Cm. L. Rev. 57 (1979); Rosenblum, Contexts and Contents of 'For Good Cause' as 



786 Verkuil, Gifford, Koch, Pierce, and Lubbers 



by untold numbers of deciders who adjudicate public rights, opportunities or 
obligations in nonconfrontational and often non-face-to-face ways. 2' These 
deciders are, as a practical matter, truly the invisible, rather than hidden, 
judiciary and are not yet susceptible to systematic study. 

The two categories of administrative deciders for whom aggregated data 
exist are the established AUs anointed by the APA to preside over formal 
hearings,^ and the far more open-ended category of AJs. 

1. The AU in Context 

Administrative law judges as a group are among the most talented, well 
trained and deeply entrenched adjudicators in our system, even when compared 
to the federal and state judiciary. Although there has been little increase in 
their ranks since 1978, there are currently almost 1,200 AUs employed by 30 
federal agencies.^ The Social Security Administration employs more than 
850.^ By comparison, there are about 636 federal district judges. If 
bankruptcy judges and magistrates are included within the definition of the 
federal trial bench, then the total number (1,250) would approximate the size 
of the AU corps. ^ While it is impossible to compare workloads in any 
meaningful way, the AUs probably decide as many, if not more, "cases" as 
their federal judicial counterparts. ^^ In terms of compensation, the AUs as a 

Criterion for Removal of Administrative Law Judges: Legal and Policy Factors, 6 W. New Eng. 
L. Rev. 593 (1984). 

^'Deciders in this category may include those who niake initial grants or denials of benefits 
(such as National Science Foundation applications), of rights of access to government facilities 
(for example, the park rangers who control access to national parks), and similar officials. They 
can be distinguished from the administrative judiciary by the fact that they render their decisions 
in a nonhealing context. This does not mean, of course, that they are outside the ambit of due 
process concern if their decisions affect private rights or benefits. See Verkuil, A Study of 
Informal Adjudication Procedures, 43 U. Cm. Rev. 739 (1976). 

^Under the APA, when a statute requires agency adjudications "to be determined on the 
record after opportunity for agency hearing," ALJs or the agency head must preside. 5 
U.S.C.§§554, 556-57 (1988). In 1972 the term AU was substituted for hearing examiner. See 
37 Fed. Reg. 16787 (1972). See Cramton, A Title Change for Federal Hearing Examiners? A 
Rose by Any Other Name..., 40 Geo. Wash. L. Rev. 918 (1972). 

^According to OPM, in May 1978 there were 1,078. Since then, the number has fluctuated 
between 989 and the current high water mark of 1,185. See the graph included in this report. 

^Statistics provided by OPM as of May 1, 1992 (the precise total was 1,185 on that date, of 
which 866 were in the Social Security Administration). 

^See chart in Appendix I. Statistics provided by Federal Judicial Center as of August 1, 
1992 (636 federal district judges, 291 bankruptcy judges and 323 magistrates). 

^^The Director of the Administrative Office of the U. S. Courts reports that for the year 
ending June 30, 1991, there were 207,742 civil cases and 47,035 criminal cases filed in the 



The Federal Administrative Judiciary 



787 



group cost the government $100 million per year (with an average salary of 
about $83,000).^ By contrast, the 636 federal district judges (at a salary of 
$125,000 each) cost $80 million per year. If the salaries of bankruptcy judges 
and magistrates are added in (at $115,092 each), their services cost the 
government another $70 million. Thus, the federal investment in AUs is two- 
thirds that of the entire investment in the trial level judiciary. This is a 
significant commitment of resources to a cadre of deciders who often go 
overlooked in the universe of federal decisions. 



Rate of Gro\A^h 
AUs in the Federal Government 



1200 



1000- 



800- 



600 



400- 



200 




06/47 



09/80 



10/82 11/85 

DATE 



07/87 



08/90 



As the government has a right to expect, ALJs are impressively 
credentialed. As is discussed in greater detail in Chapter IV, many of them 
attended "prestigious" law schools and most graduated in the top quarter of 



district courts. 23 The Third Branch 1-3 (1991). Unfortunately, there is no comparable reporting 
of AU caseload, but the 30 agencies presided over by AUs can be estimated to produce over 
300,000 cases per year (with the bulk of them (250,000) in the Social Security Administration) 
based on earlier studies. See Lubbers, Federal Agency Adjudicators: Trying to See the Forest 
and the Trees, 31 FED. Bar News & J. 383, 384, (1984) showing AU caseload in 1982/83 to be 
about 30,000 outside the SSA). See also discussion at note 35 injra. 

^^AUs are compensated in three categories: AL-1 (3 total), AL-2 (35) and AL-3 (1 147), See 
Appendix I. There are six steps in the AL-3 category based upon length of service. In 1991 the 
average salary was $82,364 per AU with a 3-1/2% raise in January 1992). Telephone interview 
with Bobby Bell, OPM Office of AUs (October 25, 1991). 



788 Verkuil, Gifford, Koch, Pierce, and Lubbers 



their class. ^^ While they themselves acknowledge their prestige is less than 
federal judges,^ by education, training and experience, they are probably no 
less qualified than bankruptcy judges and magistrates, if not the federal bench. 
Moreover, AUs, unlike federal district judges, are not chosen in a political 
way, but instead by an elaborate selection system administered by 0PM. 
Their tenure and compensation are more secure than that of bankruptcy judges 
or magistrates, as they do not serve terms but are, in effect, granted life tenure 
subject only to removal for good cause or to reductions in force. ^ Thus, as a 
practical matter, AUs rank almost as high as the federal bench in terms of job 
security. These protections provide AUs with the independence of judges in 
many respects, although they are by definition bound by the decisional 
authority of the agencies for whom they work. 

2. The Emerging Category of "Administrative Judge" 

There are other administrative deciders who do work similar to that of 
AUs but who are not comparably protected in their independence nor 
compensated at similar levels. The Frye Report collected valuable data on 
non-AU hearings and presiding officers.^' In sum, whereas the AUs as a 
group rival the federal trial judiciary and adjuncts in number and 
compensation, there is another group almost twice the size of the AU corps 
that decides more cases, but does so with less prestige, compensation and job 
security. This may be the real hidden judiciary. ^^ 



^See Paula Berger, Judges in Search of a Court: Characteristics, Functions and 
Perceptions of Federal Administrattve Law Judges 106-11 (1984) (based on 1978 survey 
data). See ALJ survey, question #36 (Appendix IV A). 

^^^nkruptcy judges serve term appointments of 14 years and magistrates serve 8-year terms. 
An ALJ may be removed "only for good cause established and determined by the Merit Systems 
Protection Board on the record after opportunity for hearing." 5 U.S.C. §7521 (1988). There 
have been only a few such removals since the APA was enacted. Therefore, AUs enjoy a tenure 
not significantly different in practice from the members of the federal bench. In fact, a Senate 
committee has noted, "In essence individuals appointed as [ALJs] hold a position with tenure very 
similar to that provided for federal judges under the Constitution." S. Rep. 95-697, 95th Cong. 
2d 1st Sess. 2 (1978) reprinted in U.S.C.C.A.N. 496-97. 

^^See Frye Report. 

^^See Lubbers, Management of Federal Agency Adjudication at 35-36 (American University 
Symposium May 16, 1991); Robie & Morse, The Federal Executive Branch Adjudicator: Alive 
(and Well) Outside the Administrative Procedure Act?, 33 FED. Bar News & J. 133 (Mar. 1986). 



The Federal Administrative Judiciary 789 



In an effort to determine the universe of non-AU hearings conducted by 
federal agencies, the Conference conducted a survey in 1989.^^ The survey 
results showed that there were 83 active case types involving almost 350,000 
cases annually that were conducted outside the APA formal hearing setting by 
non-AUs.^ These cases involved over 2,600 presiding officers, either on a 
full-time or part-time basis, who ranged in grades between GS-9 and GS-16.^^ 
Thus, the non-AU "corps" is about twice as large as the AU corps, with a 
decision load equal to that of AUs.^ We can now identify with some 
accuracy the decision world of federal administrative law, at least at the 
hearing level. ^^ These data invite a series of more detailed inquiries. 

When the non-AU hearing data are disaggregated, they reveal a 
concentration in only a few case and decider types. By far the largest category 
of cases was in the Executive Office of Immigration Review of the Department 
of Justice (DOJ), which accounted for about 152,000 of the 350,000 cases 
(approximately 45 percent of the total). This office employed about 76 full 
time "administrative judges. "^ By contrast, the next largest category of cases 
was in the Department of Health and Human Services (HHS) where presiding 
officers employed by insurance carriers (whose numbers were not calculated) 
decided 68,000 cases per year or 20 percent of the total caseload. ^^ The third 
largest category was in the Department of Veterans Affairs (DVA), which 
decided 58,000 cases per year (17 percent). These deciders, involved in 



■'■^The survey dated June 28, 1989, asked all agencies to list information about deciders who 
conducted oral hearings not required by statute to be on the record. See Frye Report, App. A. 

■^Frye Report at 4-5 . 

^^Id, at App. B. 

•^^timating the number of AU hearings is difficult because statistics are not collected 
outside the SSA context, where over 250,000 ALJ decisions were rendered in 1990. See SSA 
Office of Hearings and Appeals, Key Workload Indicators 3rd Quarter FY 1991, at p. 2. The 
last effort to collect ALJ adjudication statistics for all agencies was done in 1980 by the 
Administrative Conference. See Federal Administrative Law Judge Hearings 1976-78 (July 
1980), documenting about 20,000 AU decisions outside SSA. 

•'^By drawing the line at "some kind of hearing" we exclude, of course, the potentially larger 
category of nonhearing decisions made informally by the federal government that are beyond the 
scope of this article. See note 20 supra. 

^Frye Report at App. B. The number of Inunigration Judges is now approaching 100. 
Discussion with Chief Judge William Robie, January 29, 1992. 

^'^Id. The use of private deciders as hearing officers in Medicare reimbursement cases was 
upheld over due process challenge in Schweiker v. McClure, 456 U.S. 188 (1982). The due 
process requirements for decider impartiality are discussed at Chapter I (E)(1), VI(A) infra. 



790 Verkuil, Gbfford, Koch, Perce, and Lubbers 



disability and benefits determinations, ranged widely in experience, grade and 
(the presence oO legal training.^ 

These three agencies account for more than 80 percent of the caseload 
studied^' and offer a remarkable variety of decider qualifications, from 
administrative judges to nonlawyer and even nongovernmental examiners. The 
hearing procedures employed range from the equivalent of formal APA 
hearings, to informal processes from which there is no appeal. These 
decisions are often similar to the kinds of decisions traditionally made by 
ALJs.^2 There appears to be no obvious reason why the presiding official in 
these case types is sometimes an AU and sometimes a non-AU. Moreover, it 
is also not clear what case characteristics should trigger the use of APA formal 
hearings with AU presiders as opposed to less formal non-AU hearings and 
presiders. 



£. Rationalizing the Use of ALJs: Mixed Signals from 
Congress and the Courts 

The search for answers as to why AUs do not appear to be used in a 
systematic way begins with Congress, but also extends to the courts. The 
APA intended to leave the decision to employ AUs to agency-specific 
legislation by stating that AUs would only be required where statutes called 
for "on the record" hearings. Of course the APA was drafted against a 
background of existing statutes so the "on the record" requirement instantly 
applied to many regulatory agencies in 1946.^^ The first task the Civil Service 
Conmiission (CSC) faced in 1947 was determining whether incumbent hearing 
examiners at these agencies were qualified to serve as "hearing officers" under 



*^rye Report at p. 4. The DVA employs 44 lawyers and 22 nonlawyers at grade GS-15, 
who sit in panels of three as the Board of Veterans Appeals. It also employs 1,692 part-time 
nonlawyers whose grades range from G-9 to GS-13. See Frye Report at App.B. 

^'The other significant categories of cases are those conducted by the Coast Guard in the civil 
penalty arena (navigation, nurine safety and pollutant discharges), which number about 20,000 
and are decided by 10 nonlawyer Coast Guard officers. (The high caseload per decider is 
explained by the fact that only about 7 percent of the total go to hearing.) See Frye Report at 43- 
45. Other significant caseloads involve EEOC, which uses about 79 GS-1 1 to GS-14 attorneys to 
decide about 6,227 cases, and the various agency boards of contract appeals, which use about 80 
attorneys (grades ranging between GS-14 to GS-1 8) to decide some 5,000 cases. 

^^The similarity of the case types will be discussed in terms of the SSA and VA disability 
process at Chapter I (F), infra. 

"^Pub. L. No. 404, ch. 324, 60 Stat 237 (1946) (codified at 5 U.S.C. §§55 1-552, 553-559, 
701-706, 1305, 3105, 3344, 5362, 7521 (1982). 



The Federal Administrative Judiciary 791 



the APA.** Once in place, however, Congress has not always been willing to 
expand the number of agencies required to use APA hearing examiners. 

In Wong Yang Sung v. McGrath,^ the Supreme Court held that the due 
process clause might impose protections upon decider independence similar to 
those required by the APA. The decision was quickly challenged by 
legislative action, which rejected using AUs as presiding officers in 
inmiigration and deportation cases. The Court subsequently acceded to this 
legislative reversal.^ By stopping short of equating due process requirements 
with the need for formal hearings under the APA, Congress and the courts 
greatly reduced the potential role of the AU. In retrospect, however, the 
decision to decouple the use of AUs and formal hearings from the due process 
clause seems the only sensible course. The "due process revolution" of the 
1970s inspired by Goldberg v. Kelly^^ would surely have swamped the 
administrative decision process had AUs been required every time procedural 
due process was invoked.^ 

In the 1970s another development expanded the potential use of AUs. The 
Social Security Administration had long utilized AUs even though the APA 
on-the-record hearing requirements may not have required it to do so. In 1956 
Congress instituted the Social Security disability program which markedly 
increased the number of AU cases. By the 1970s the number of disability 
determinations skyrocketed with the advent of expanded coverage. ^^ It became 



^^The failed attempt individually to review the qualifications of these 197 incumbent hearing 
officers rather than accept them as a group is told in Fuchs, The Hearing Examiner Fiasco under 
the Administrative Procedure Act, 63 Harv. Rev, 737 (1950). See also Scalia, The ALJ Fiasco-A 
Reprise, 47 U. Cm. L. Rev. 57 (1979) (discussing current problems of appointment and grading 
of ALJs). See also Chapter V infra. 

*^39 U.S. 33 (1950). 

^^arcello v. Bonds, 349 U.S. 302 (1954). 

^^397 U.S. 254 (1970). Goldberg created a "due process revolution," in Henry Friendly 's 
words, by specifying in detail the procedural ingredients required to satisfy due process in the 
informal administrative setting (i.e., revocation of AFDC payments). Ironically, however, 
Goldberg mandated little in terms of decider independence, requiring only that deciders not have 
previously participated in decisions they are called upon to review. 397 U.S. at 271. See 
generally, Verkuil, note 16 supra, at 750-52. 

**rhe demise of the right-privilege distinction and the concomitant rise in the number and 
kind of interests protected by due process, see e.g.. Board of Regents v. Roth, 408 U.S. 564 
(1972), created a potential landslide of due process adjudications at the state as well as federal 
level that could potentially have been included within the APA formal hearing requirements. The 
realization that the administrative decision system could be overwhelmed by these new procedural 
rights undoubtedly contributed to the Court's modification of them in cases like Mathews v. 
Eldridge, 424 U.S. 319 (1976). 

^'in 1972 Congress established the Supplemental Security Income (SSI) program. In doing 
so, it did not initially require AUs to preside over SSI cases. See House Comm. on Ways and 



792 Verkuil, Gifford, Koch, Pierce, and Lubbers 



quickly apparent that the number of AUs making disability determinations 
would far outstrip those making all formal decisions in government.* The 
remarkable thing about this expanded use of AUs was that it emerged without 
APA compulsion because no on-the-record hearing was mandated in the 
disability context. And, in Richardson v. Perales,^^ the Court made it clear 
that the so-called "three-hat role" of the AU (representative of claimant, the 
government and impartial decider) was entirely consistent with statutory and 
constitutional norms." 

Thus, a new category of AUs who presided over benefit rather than 
regulatory decisions emerged. These AUs had the unusual distinction of 
conducting informal, nonadversarial hearings; in return they received a lower 
grade (GS-15 rather than GS-16).^^ Presiding over informal, nonlawyer- 
dominated hearings was a departure for AUs who traditionally had been 
associated with the trial-type process contemplated by APA formal 
adjudication procedures. But different though it may have been, this category 
expanded the use of the AUs dramatically. It also raised the prospect of other 
uses of AUs in nonformal hearing settings,^ and in effect expanded the 
relevant talents AUs needed to preside effectively. 

1. The Due Process Limits on Decider Impartiality 

While endorsing the use of AUs in the relatively informal setting of SSA 
disability proceedings, the Court was at the same time accepting a low 
threshold for decider independence outside the APA formal hearing context. 



Means, Social Security Amendments of 1971, H.R. Rep. No. 92-231, 92d Cong. 1st Sess. 156 
(1971). Later Congress converted SSI hearing officers into ALJs. See Pub. L. No. 92-216 
§371, 91 Stat. 1559 (1977). (Codified at note to 42 U.S.C. §1383 (1988)). See discussion in 
Chapter II. 

^^ a sense, the SSA disability story demonstrates what might have happened had Congress 
accepted the Court's invitation in Wong Yang Sung to equate due process hearings with APA 
formal hearings more generally. Today almost three out of four ALJs make SSA disability 
determinations. If SSA had not decided to utilize AUs, the number and influence of those 
deciders would have been sharply reduced. 

^•402 U.S. 389 (1971). 

^^The three-hat role was necessitated by the fact that in those days there were few attorneys 
for claimants and none representing the government. Obviously, had the formal hearing 
requirements of the APA been mandatory, the separation-of-functions requirements would have 
forbidden the ALJ to assume total control of the process. 

^■^Only recently has the two-grade AU structure been replaced. See note 27 supra. 

^For example, the use of AUs to preside over APA informal rulemaking or as members of 
agency appeals boards has long been advocated but not readily embraced. 



The Federal Administrative Judiciary 793 



In Amett v. Kennedy^^ a divided Court allowed a government employee to be 
disciplined by the employee's superior for making statements against that 
superior. Justice White in dissent expressed the view that this kind of bias in a 
decisionmaker had not been accepted under due process standards since 
Bonham's case.^ Similariy, in Withrow v. Larkin,^'' the Court accepted in the 
state informal hearing context the potential conflict of interest that exists in 
combining the investigatory and adjudication function in a single entity.* For 
due process purposes the Court seems willing to narrow the bias or conflict of 
interest inquiry into one involving only pecuniary interests.^ 

Moreover, the Court has encouraged the experimentation with creative 
decision techniques that question the need for any kind of government 
deciders, let alone AUs. In Schweiker v. McClure^^ the Court accepted, 
against due process challenges alleging bias, the use of nonlawyer, privately 
contracted deciders to resolve medicare reimbursement claims.*' This decision 
in effect contradicted established notions of decider formality by not only 
privatizing the deciders but also placing them beyond the exclusive control of 
the legal profession. Moreover, the Court refused to mandate an 
administrative or judicial appeal process as part of a due process requirement. ^^ 



"416 U.S. 134 (1974). 

^Id. at 171. In Bonham's case, 8 Coke 114a, 118a, 77 Eng. Rep. 646, 652 (1610), Lord 
Coke announced the fundamental proposition of natural justice that no man can be a judge in his 
own cause. 

"421 U.S. 35 (1975). 

*The Court may have reasonsed that this combination of functions at the state level had its 
counterpart in the organizational structure of many independent federal agencies, such as the 
FTC, where the Commission in effect approves the commencement of investigations and issuance 
of complaints by its enforcement staff and then sits in judgment on the resulting case. 

^% Gibson v. Berryhill, 411 U.S. 564 (1973) the distinction is made clear. The fact that a 
private board of optometrists was authorized by state law to regulate their competitors (with 
possible pecuniary benefit) condemned the arrangement under due process standards. See also 
Tumey v. Ohio; 278 U.S. 510 (1927). Ward v. City of MonroeviUe, 409 U.S. 57 (1972). These 
cases are discussed in Chapter VIl. 

<*456U.S. 188(1982). 

^'Justice Powell likened the private deciders in the case to government officials: "The 
hearing officers involved in this case serve in a quasi-judicial capacity, similar in many respects 
to that of administrative law judges." 456 U.S. at 195. [Justice Powell's analogy may be 
overstated. ALJs have a higher status than the private contract deciders involved in hearing 
reimbursement cases.] 

^hd at 198-99. Subsequent to this decision Congress provided for an appeal to an ALI in 
cases where the amount in controversy is $500 or more. Pub. L. No. 99-509, §9341 (b) (1986). 
(Codified as amended at 42 U.S.C. § 1395(b)(2)(B) (1988)). This is yet another illustration of the 
different view that Congress and the courts often uke about the necessity for formality in deciders 
or process. 



794 Verkuil, Gifford, Koch, Pierce, and Lubbers 



It is fair to say that by the 1990s the Court has moved in the direction of 
greater decisional freedom under the due process clause. From its earlier 
position of equating due process to formal APA hearings in Wong Yang Sung, 
it moved beyond the Goldberg requirement of specifying procedures for due 
process purposes to a world where the informal process of infinite variety can 
be readily accepted. In this environment the decider need not be APA- 
qualified, nor must the APA formal hearing process serve as a baseline. But 
this informal process, which is not defined by the APA, remains an amorphous 
competing model.® The only informal adjudication process contained in the 
APA is the bare bones procedural guidelines of section 555.^ Much work 
remains to be done on the question of whether an informal process can be 
generalized from existing agency practices. 

2. Congressional Reactions to Decider Formality 

Over the last 40 years Congress has sent inconsistent signals about the use 
of AUs. Except perhaps in the civil money penalty area, Congress has not 
added significantly to those agency statutes that require "on the record" 
hearings even though that invitation to the expanded use of AUs was the basic 
premise of the APA.^ And Congress does, of course, accept, if not endorse, 
the large category of non-AU administrative judges that exist throughout 
government." 

On the other hand. Congress has increased the independence and stature of 
existing AUs in several significant ways. In accepting the Civil Service 
Commission's conversion of APA hearing examiners to administrative law 
judges, it did far more than merely approve a title change. ^^ This decision in 
effect legitimated a federal administrative yW/c/ary, and elevated the sights of 
all administrative deciders. Recently, of course. Congress also boosted the 



^See Gardner, The Procedures by Which Informal Action is Taken, 24 Admin, l. Rev. 155 
(1972). 

^See e.g., P.B.G.C. v LTV Corp, 496 U.S. 633 (1990). See also Verkuil, The Emerging 
Concept of Administrative Procedure, 78 COLUM. L. Rev. 258 (1978). 

^Of course, the fact that Congress accepted the use of ALJs in the SSA disability hearing 
process even without the on-the-record requirement has vastly enhanced their number and 
influence. 

Congress also approves by statute the specific use of non-ALJs in contexts where AUs are 
also used, such as Veterans Administration and Merit Systems Protection Board. In the latter 
situation, AUs and non-ALJs are used to decide disciplinary cases (ALJs only being required to 
hear cases involving other ALJs). 

^^In 1978 Congress amended the U.S. Code to endorse the title administrative law judge that 
had eariier been adopted by the Civil Service Commission. Act of Mar. 27. 1978, Pub. L. No. 
95-251, 92 Slat. 183; 37 Fed.Reg. 16, 787 (1972). 



The Federal Administrative Judiciary 795 



status of AUs by approving a new pay structure that combined all 
nonmanagerial AUs into a seniority-based pay schedule and increased their 
salary. 

These achievements also suggest that AUs have received crucial support 
from the organized bar.** The bar has steadfastly insisted that the value of 
decider independence can best be served by using AUs in the formal hearing 
setting. Lawyers quite naturally seek to place the administrative process close 
to the judicial process with which they are most comfortable. The current 
debates in Congress surrounding the desirability of an independent AU Corps 
are part of this ongoing effort to judicialize the administrative process.^ The 
merits of the proposed legislation that would create some sort of AU corps 
will be discussed in greater detail in Chapter VI. For the purposes of this 
introductory chapter it is sufficient to note that Congress will inevitably play a 
key role in deciding the qualifications and benefits of administrative judges, 
broadly defined. It will also decide when AUs are a necessary component of 
the decision process. It is hoped that this study will assist Congress as well as 
the agencies in deciding when and how to call upon AUs or other 
administrative judges. 



F. Introduction to Decider Independence 
in the Context of Disability Benefits Determinations 

Ambivalence towards use of AUs is tied ironically to the attribute that 
many would assert is their greatest asset: strict independence from participant 
or agency control. This was certainly the attribute that motivated the drafters 
of the APA to create the formal adjudication process in 1946.^ But while the 
APA protected the AU from improper agency control over the decision 
process, it also ensured that the outcome of the decisions AUs presided over 
rested formally in the agency head's hands. ^' This compromise over the 

**The ABA has long supported enhancing AU independence as well as expanding their role. 
For example, in 1986 the ABA gave an award to Social Security ALJs for upholding the integrity 
of administrative adjudication. See Bono, Administrative Report, Judges' J., Winter 1992, at 23, 
41. 

<*'S.594 lOlst Cong. 1st. Sess., 135 Cong. Rec. 2711-13 (1989). One can also read the 
recent legislation to subject the decisions of the Veterans Administration to (linw^ed) judicial 
review as further evidence of Congress' interest in judicializing the administrative process. See 
Veterans Judicial Review Act of 1988, Pub. L. No. 100-687, 102 Sut. 4105. 38 U.S.C.§§3404. 

^'^fore the APA, hearing examiners were described by Congress as biased and partisan. 
See Scalia, The AU Fiasco - A Reprise, 47 U. Chi. L. Rev. 34 (1979). 

^'The final decision is that of the agency and no deference is due the ALJ's decision. See 5 
U.S.C. §557. 



796 Verkuil, Gifford, Kcxth, Pierce, and Lubbers 



functions AUs perform under the APA serves to confuse their role today. The 
AU is independent during the course of the decision process, but once a 
decision is made, it is not granted the respect of automatic finality or even 
deference. 

Today, disputes over AU independence are rarely about fundamental 
issues such as ex parte contacts or agency coercion; the current level of 
disputes has become almost trivialized by squabbles over perquisites and 
benefits.^ However, legitimate agency reservations about the ability to control 
the performance of AUs under the APA are growing— and in the process 
spawning varieties of non-AU deciders. Because the courts have made it clear 
that decider independence is not a serious due process issue, agencies (and 
Congress itself) are free to seek more efficient decider alternatives. In this 
setting the question becomes whether using AUs is good policy, not whether 
AUs are necessary to satisfy fundamental notions of fairness. To answer the 
question, we carefully examine the independence factor. 

As anyone who labors in the academic community will attest, the security 
of tenure has costs as well as benefits. That is no less true with regard to 
AUs. Once one passes the point where independence is a due process 
desiderata, it becomes an issue that is part of any tradeoff between 
management efficiency and decider prerogatives. Today that is the arena 
within which the issue is debated. Much of the debate can be captured in the 
long-running saga of SSA's attempts to place productivity and quality control 
standards on its AUs when deciding disability cases. 

Since social security judges decide so many cases with similar fact patterns, 
apply a single legal standard and are assigned randomly, SSA naturally wants 
to impose uniform standards of case management so as to achieve greater 
comparability of outcome. A decision system with more than 250,000 cases 
annually and that employs more than 850 AUs is not one that can ignore the 
search for systemic solutions. But these management techniques have a 
tortured history. The agency has used decision "quotas" to try to regularize 
the number of cases decided by each AU per month. And in light of the fact 
that the cases are randomly assigned, it has experimented with "goals" for 



"^See Moss, Judges Under Fire - AU Independence ai Issue, A.B.A.J., Nov. 1991 at 56, 59 
(documenting ALJ complaints over agency assignment of parking spaces and attendance at 
training conferences). See also GAO, Administrative Judges-Allegations of Interference by the 
Department of Interior, GAO/GGO-93-6 (October 1992). 



The Federal Administrative Judiciary 797 



allowance rates as well. Over the years, the SSA and its AUs have struggled 
over the proper parameters of these management standards.*^ 

There is no doubt that from a management perspective, productivity and 
even allowance rate goals are sensible control mechanisms. However, when 
faced with a corps of independent deciders who view themselves as the 
functional equivalent of federal district judges, and who are willing to go to 
court and to Congress to defend their claims to independence, there is not too 
much as a practical matter an agency can do to force caseload management. 
Indeed, this seems to have been the conclusion reached by SSA and its Office 
of Hearing and Appeals. It has jettisoned controversial techniques such as 
workload quotas and nonacquiescence in court of appeals decisions.^'' The 
agency has apparently abandoned quotas and allowance rate goals because they 
are of limited use in a system of independent deciders. ^^ Acceptance of AU 
independence can also be assumed because in the last 5 years no ALJs have 
sued the agency.''^ 

The SSA-AU experience is the prime example of the tension between 
management control and decider independence. Tension has lessened 
primarily because of the strength of the AUs on the independence issue. The 
political lessons of this experience are clear: management techniques are no 
match for claims of independence. Once the ALJ is chosen as a decider, 
judicial-type prerogatives place control over the process in his or her "court. " 
The decision arena reflects a setting where modes of individual decisionmaking 
prevail over attempts to regularize outcomes on a statistical basis. But imagine 
another reality. Suppose AUs were not chosen to decide disability cases, 



"^See Nash v. Bowen, 869 F.2d 675 (2d Cir. 1989) cert denied 493 U.S. 812 (1989), 
(upholding agencies setting of "reasonable production goals"); Assn. of AUs, Inc. v. Heckler, 
594 F. Supp. 1132 (D.D.C. 1984) (criticizing the agency's use of allowance rate goals). See also 
SSA V. Goodnian, 19 M.S.P.R. 321 (1984) (rejecting removal of an AU based upon 
demonstrated low productivity-less than 50% of agency-wide average of 31 cases per month). 
These cases are discussed in more detail in Chapter V. 

^'*The agency has also had its fights with the courts. To help achieve uniform policy it has 
refused to accept as precedent some decisions of federal courts. This practice has attracted the ire 
of the courts. Congress and the bar. See Estreicher & Revesz, NonAcquiescence by Federal 
Administrative Agencies, 98 Yale L. J. 679 (1989). The agency's nonacquiescence policy was 
significantly limited by regulation in 1990. See 55 Fed. Reg. 1990 (January 11, 1990). 

^^Conversation by author with Michael Astrue, General Counsel, HHS, December 12, 1991. 

''^is lack of ALJ lawsuits has also been paralleled by a significant drop in appeals to the 
federal district court from AU decisions from over 29,000 in 1984 to about 7,000 in 1990. See 
Annual Report of the Director of the Administrative Office of the U.S. Courts 7 (1990). 
Another factor affecting appeal rates to the federal courts may simply be that the rate of AU 
decisions favorable to the claimant has gone up from less than 50% in the 1970s to over 62% in 
1990. See SSA-OHA, Key Workload Indicators, at 2 (3Q 1991). 



798 Verkuil, Gifford, Koch, Pierce, and Lubbers 



would management techniques be easier to implement and would the outcomes 
be different? To obtain some perspective on this question, it is useful to 
examine the history of the AU program. Special attention will be given to the 
evolution of the AU's role from primarily an "examiner" in regulatory cases 
to now, most frequently, a decider of benefit claims. 

11. Historical Background to This Study 

This section examines the history and development of the position of 
federal administrative law judges, the principal adjudicating position created 
by statute whose use is mandated in many adjudications. Identifying the 
historical concerns that have given rise to the creation and widespread use of 
this position will help (1) in assessing of the role of that position in the 
circumstances of today's adjudicatory caseload, (2) in evaluating the need for 
or desirability of any change or modification of the characteristics of that 
position, (3) in assessing the need for or desirability of an expansion (or 
contraction) of the ALJ position to embrace the functions performed by non- 
AU adjudicators, and (4) in improving the process by which such officials are 
selected. 

The federal officials we know today as federal administrative law judges 
and who preside at adjudications in a number of federal agencies bore the title 
of hearing examiner when their position was first established by the 
Administrative Procedure Act in 1946. In 1972 the Civil Service Commission 
(CSC), by regulation, changed the title of hearing examiner to administrative 
law judge, ^ and in 1978, Congress established the new title by statute.^ 

The appointment of administrative law judges is overseen by the Office of 
Personnel Management (OPM) through a process overtly designed (i) to 
exclude politics from appointment decisions and (ii) to obtain the most 
qualified persons. Until the enactment of the Federal Employees Pay 
Comparability Act of 1990, OPM was vested by law with the authority to 
make all decisions governing pay of AUs, to insulate them from agency 
influence. Since the 1990 legislation establishes that ALJ pay is to be 
determined on the basis of length of service, the compensation of AUs 
remains outside the ability of agencies to affect. Finally, AUs may be 
dismissed for cause only after a hearing before the Merit Systems Protection 
Board. 

In addition to AUs, there are numerous federal officers who preside over 
various kinds of adjudications within the federal bureaucracy but whose 



^37 Fed.Reg. 16,787 (1972). 



^Pub. L. No. 95-251 §2(a)(10), 92 Slat. 183 (1978). 



The Federal Administrative Judiciary 799 



decisional independence is not so well protected as that of ALJs. In a recent 
report to the Conference, Administrative Law Judge John H. Frye, III 
identified 2,692 such non-AU presiding officers, 601 of whom have no other 
duties.^ 



A. The Origins of Hearing Examiners Prior to the 
Enactment of the APA 

Although the APA created hearing examiners who were statutorily 
protected in several ways from agency influence upon their factfinding, 
persons known as hearing examiners presided at adjudications before 
enactment of the APA, and the term "examiner" was used at least as early as 
1906. Legislation amending the Interstate Commerce Act in 1906 (the 
Hepburn Act) authorized the appointment of examiners who would possess 
powers to receive evidence. The Interstate Commerce Commission 
immediately used its newly conferred power to appoint examiners, and in 1907 
it appointed a Chief Examiner.*' Sharfman reports that in 1917 the 
Commission began the practice of having examiners prepare proposed reports 
from which the parties might seek review and by 1919 the practice extended to 
most formal rate cases.*' In 1914 the legislation establishing the Federal Trade 
Conmiission (FTC) gave that Conmiission the power to appoint examiners. 
This provision was copied in the Shipping Act of 1916 and thereafter in the 
enabling legislation of many regulatory agencies.^ 

The roles and duties of examiners were not always clearly confined to a 
purely judge-like role during the several decades prior to enactment of the 
APA. Although examiners generally tended to preside over trial-type hearings 
for the agencies, they sometimes performed investigatory duties and, in some 
agencies, they consulted extensively with superiors about how cases before 
them should be decided. Writing 9 years after the FTC was established, 
Henderson (the historian of the FTC) observed that it was then customary for 
the precomplaint investigation of a case to be conducted by one of the 
Commission's examiners.*^ Henderson's report of this use of examiners shows 



^rye Report, Appendix B, p.l. 

*^.L. Sharfman, IV THE INTERSTATE Commerce Commission 73 (1937). 

*i/J., at 73-74. 

^K.C. Davis, 3 Administrative Law Treatise §17:11 (2d ed. 1980). Musolf identifies 15 
regulatory statutes in which the language of the Hepburn Act conferring power upon examiners 
was replicated between 1920 and 1940. L. Musolf, Federal Examiners and the Confuct of 
Law AND Administration 52-53 (1953). 

*^G. Henderson, The Federal Trade Commission 51 (1924). 



800 Verkuel, Gifford, Koch, Pierce, and Lubbers 



that examiners were not then viewed as personnel committed solely to judging, 
but were apparently considered to be open to a wider range of tasks that the 
Commission found helpful. The Attorney General's Committee staff 
monograph on the Interstate Commerce Commission (ICC) reported that in the 
Loans and Reorganization Section of the ICC's Bureau of Finance, the 
proposed reports of examiners frequently bore the imprint of the Bureau 
Director and his staff," The practice of examiners consulting with agency 
officials about proposed reports was also followed extensively in the ICC's 
Bureau of Formal Cases. ^^ 

The pre-World War II practice of the Federal Communications Commission 
(FCC) requires a special word. Prior to late 1938, the FCC employed a staff 
of examiners, one of whom presided at Commission hearings and prepared a 
report with findings and recommendations that served as the focus of oral 
argument before the Commission. Because the examiners were unable to 
reflect the Commission's policies in their reports, however, those reports 
failed to serve their intended purpose. In late 1938, therefore, the Commission 
abolished its staff of examiners and entrusted the task of presiding over 
hearings to attorneys from its L~ -v Department, usually the attorney who had 
been in charge of the case from the beginning. Unless a separate Commission 
attorney was appointed (which generally occurred in complex cases), the 
presiding attorney conducted direct examination of Commission witnesses and 
cross-examination of other witnesses. That attorney then assisted in the 
preparation of an institutionally-formulated proposed decision, which served as 
the focus of oral argument before the Commission.^ 

In the late 1930s, the regulatory agencies, a primary tool of the New Deal 
program, came under increasing attack for bias. Critics pointed to these 
agencies as possessing powers of investigation, prosecution and adjudication, 
and argued that the combination of all these powers in the same institution 
impeded fair adjudication.^^ 

These criticisms resulted, first, in the Congressional passage of the Walter- 
Logan bill in 1940,^ a bill designed to constrain the power of the federal 



^See S.Doc. No. 10, Administrative Procedure in Government Agencies, Part 11 Interstate 
Commerce Commission, 77th Cong., 1st Sess. 59 (1941). 

^^See S. Doc. No. 10, Administrative Procedure in Government Agencies, Part 11 Interstate 
Commerce Commission, 77th Cong., 1st Sess. 26-29 (1941). 

^^This description of FCC practice is taken from S.Doc. No. 136, Administrative Procedure 
in Government Agencies, Part 3 Federal Communications Commission, 76th Cong., 3d Sess. 22- 
37 (1940). 

8^is history is reviewed in Universal Camera Corp. v. NLRB, 340 U.S. 474, 478-79 
(1951). 

^H.R. 6324, 76th Cong., 1st Sess. (1940). 



The Federal Ajdministrative Judiciary 80 1 



agencies. Although President Roosevelt vetoed the Walter-Logan bill, he 
promised that administrative reform would be undertaken as a result of the 
then-pending studies of the Attorney General's Committee to Study 
Administrative Procedure.^ That Committee had been appointed in 1939 at the 
direction of the President and had undertaken the most extensive study of 
administrative procedure ever conducted. Ultimately, through the 
reconmiendations of the Attorney General's Committee, the critics' concerns 
were addressed in the federal Administrative Procedure Act, enacted in 1946. 

The problem to which the critics were reacting was created by several 
circumstances. First, in the 1930s, adjudication was the principal method 
agencies used to promulgate policies.* Second, the functions of investigation, 
prosecution and adjudication were generally combined within the same agency; 
the agency head was responsible for overseeing all agency operations; and the 
agency head generally sat as the final adjudicating tribunal. The agency head 
had to sit as the final adjudicating tribunal to control agency policy, because it 
was in adjudications that agency policy was formulated and applied. 
Similarly, the agency head had to supervise investigations and complaint- 
issuance decisions to ensure that the proper kinds of cases came before the 
agency for adjudication. That is to say, in the view of the agencies, their 
power to make policy through adjudications would be an empty one unless 
they could ensure that cases raising the issues calling for policy decisions were 
brought before them. 

Although the agencies believed they needed the powers of prosecution and 
adjudication to properly exercise their policy functions, the critics tended to 
see the regulatory agencies as inherently biased institutions in which a fair trial 
was unlikely. Indeed, the critics tended to perceive that agencies bent the facts 
to reach predetermined results. 

When the Attorney General's Committee addressed the difficulties 
engendered by the combination of prosecutorial and adjudicating functions in a 
single agency, it devised a solution which, in its general form, was 
subsequently incorporated into the APA. That solution, in significant part, 
involved a two-part focus, first, towards evidentiary factfinding for which 
hearing examiners were primarily responsible; and second, towards 
policymaking, which belonged exclusively to the agency. Accordingly, the 
Committee proposed controls designed to protect the fairness and accuracy of 
evidentiary factfmding. The Committee reconmiended that hearing examiners 
presiding at the reception of evidence generally be insulated from all duties 
inconsistent with the judging function. The Committee further recommended 



^86 Cong. Rec. 13942^3 (1940). 

'^See discussion in Gifford, Adjudication in Independent Tribunals: The Role of an 
Alternative Agency Structure, 66 Notre Dame L. Rev. 965, 969-70 (1991). 



802 Verkuel, Gifford, Koch, Pierce, and Lubbers 



that these examiners issue proposed reports embodying their resolution of the 
factual issues, and they recommended several steps designed to ensure that 
these examiners exercised their independent judgment in resolving the factual 
issues, free from agency pressure or intimidation. Under the Committee's 
proposals, the agency would exercise its policy role in reviewing the decisions 
of the hearing examiners. 

Even though the agency might reverse a hearing examiner's decision for 
policy reasons, the parties and the public would have had the benefit of a 
visibly independent determination of the evidentiary facts. It would then be 
clear to all that the evidentiary facts were found fairly and accurately. The 
application of policy at the agency level would then be seen for what it was: a 
policy determination rather than a skewing of evidentiary factfinding for policy 
reasons. 

In 1939-40, the Attorney General's Committee to Study Administrative 
Procedure examined the operations of more than 20 federal agencies. The 
Committee staff prepared a monograph on each agency, and on the basis of the 
staff monographs, the Committee issued its Final Report in January 1941.^' 

The Committee addressed the problems posed by combining prosecutorial 
and investigative functions with adjudicative or deciding functions in the same 
institution. As noted, in the initial decision of an adjudication, the 
Committee's proposed solutions involved using a class of hearing examiners 
who would be "insulated from all phases of a case other than hearing and 
deciding."^ Moreover, the Committee sought to provide these examiners with 
the kind of status and protections against agency coercion or influence that 
would encourage them to exercise independent judgment in their 
determinations of evidentiary facts. 

To achieve the desired degree of examiner independence, the Committee 
used two devices: first, recommending that they be well compensated, and 
second, recommending that they hold office for a term of 7 years and that they 
could be removed only for cause. In addition to promoting independence of 
judgment, the Committee believed that these job characteristics would help 
attract persons of independent judgment to seek employment as examiners. 

Because subsequent disputes over agency interference with AU 
independence have raised issues about the degree to which ALJs are properly 
independent of the agencies for which they work, it needs to be emphasized 
that, in the view of the AG Committee, the use of independent hearing 
examiners would not divest the agencies of their control over policy, since the 



"Attorney General's Committee on Administrative Procedure, Administrative Procedure in 
Government Agencies, Final Report, S. Doc. No. 8, 77th cong., 1st Sess. (1941) (hereafter 
referred to as "Final Report"). 

'^Final Report 56. 



The Federal Administrative Judiciary 803 



agencies retained the power to reverse hearing examiner decisions upon 
review. The use of independent hearing examiners, however, would guarantee 
the fairness of the evidentiary-factfinding process. 



B. Administrative Law Judges Under the APA'" 

At the time Congress enacted the Administrative Procedure Act, regulatory 
agencies generally formulated policy in adjudications, as they had been doing 
during the preceding decades. A major concern of the APA, accordingly, was 
to ensure that such policy formulation did not jeopardize fair and accurate 
evidentiary factfinding. Following the broad outlines of the Attorney 
General's Committee's recommendations, the APA imposed strict separations- 
of-functions provisions in adjudications; it required that decisions in 
evidentiary hearings be made on the record and it limited the scope for official 
notice. Finally, in the APA, the Congress redesigned the office of hearing 
examiner to ensure that these presiding officers—who were then termed 
"examiners" and who today are "administrative law judges"~would perform 
their evidentiary factfinding function free from agency coercion or influence. 

Under the APA, unless the agency or an agency member presides at the 
reception of evidence, the presiding officer must be an AU provided with 
tenure in office and protection against agency retribution.^ Moreover, in 
addition, the APA specifically disallows AUs presiding in adjudications from 
being subject to the direction or control of officials in charge of investigation 
or prosecution in that case.'^ The AU decision is also subject to de novo 
review by the agency.^ This procedural format ensures that the evidentiary 
facts will be found in the first instance by an official not subject to the 
agency's control. At the same time, the format ensures that the agency retains 
full power over policy, a power it can exercise when it performs its reviewing 
function. Thus, policy responsibility remains exclusively with the agency 
while the public has assurance the facts are found in the first instance by an 
official not subject to agency coercion. 



'^^The APA employed the term "examiners" when it established the office known today as 
administrative law judge. In 1972 the Civil Service Commission, by regulation, adopted the title 
of administrative law judge. 37 Fed.Reg. 16,787 (1972). In 1978, Congress esublished the new 
title by statute. Pub. L. No. 95-251 §2(a)(10), 92 Stat. 183 (1978). For convenience, the term 
administrative law judge is used throughout, except where use of the earlier term helps the 
exposition. 

**5 U.S.C. §556(a) (1988) 

'^5 U.S.C. §554(d) (1988). 

^5 U.S.C. §557(b) (1988). 



804 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Section 11 of the APA provided that as many examiners as necessary 
should be appointed by and for each agency. At the time of the APA's 
enactment, there were 196 hearing examiners distributed among the federal 
agencies as follows: Department of Agriculture 3; Civil Aeronautics Board 30; 
Civil Service Commission 1; Federal Maritime Board 5; Federal 
Communications Commission 11; Federal Power Commission 8; Federal 
Trade Commission 20; Food and Drug Administration 3; Social Security 
Administration 13; Department of Labor 2; Bureau of Indian Affairs 10; 
National Labor Relations Board 33; Interstate Commerce Commission 47; 
Securities and Exchange Conmiission 6; Alcohol and Tobacco Tax Division 
4.^ Hearing examiners, accordingly, were assigned primarily to the economic 
regulatory agencies, because it was in those agencies that most of the APA 
adjudication occurred. A more complete explanation is that those agencies had 
been the subject of widespread expressions of concern about commingling 
prosecutorial and adjudicating functions; and it was those agencies, therefore, 
that had the greatest need to show that the office of independent hearing 
examiners was not skewing evidentiary factfinding for policy reasons. 



C. Immediate Post- APA Developments Affecting Hearing 

Examiners* 

In the immediate aftermath of the enactment of the APA, the Supreme 
Court gave a wide scope to the APA adjudication provisions. In 1950 the first 
case reached the Supreme Court under the APA. In that case, Wong Yang 
Sung V. McGrath,^ the Court gave an expansive reading to the provisions 
governing formal adjudication. Under the Court's ruling the provisions of 
§554 would be triggered when an adjudicatory hearing is required not only by 
statute directly, but by the Constitution. As a result, the Court ruled the 
formal adjudication provisions of the APA applied to deportation proceedings 
where the due process clause of the Constitution required a hearing but the 
statute did not explicitly do so. Thus §554, which governs formal 
adjudications, was brought into play. Not only does §554 itself impose strict 



^These daU are from the President's Conference on Administrative Procedure, Appointment 
and Status of Federal Hearing Officers, Draft Report of the Committee on Hearing Officers, 
Appendix D (1954). The 1947 Annual Report of the Civil Service Commission reported 
conditional appointments to 197 hearing examiner positions on June 11, 1947 rather than the 196 
figure used above. U.S. Civil Service Comm'n, 64lh Ann. Rep., 30 (1947). 

'hlie initial appointment "fiasco" is treated, infra. Chapter 11(H). 

^339 U.S. 33 (1950). 



The Federal Administrative Judiciary 805 



separation-of-fiinctions requirements on presiding officers, it also mandates the 
application of §556, which requires adjudication by independent AUs. 

All these requirements were incompatible with the procedure the 
Immigration and Naturalization Service (INS) employed in deportation 
hearings. Under the Court's ruling in Wong Yang Sung, the INS had to 
restructure its practices to comply with the APA. 

Following up its ruling in Wong Yang Sung, the Court made similar rulings 
in Riss & Co. v. US, 341 U.S. 907 (1951), applying the APA to require that 
independent hearing examiners preside in motor carrier expansion certificate 
hearings under the Interstate Commerce Act, and in Gates v. Haderlein, 342 
U.S. 804 (1952), extending the APA to Post Office fraud proceedings. 
Congress reacted to the Wong Yang Sung decision by enacting legislation 
explicitly making the APA inapplicable to deportation and exclusion 
proceedings. •<» In 1955, in Marcello v. Bonds, ^^^ the Court upheld against 
constitutional attack the validity of legislation providing non-APA procedure 
for deportation and exclusion proceedings. 

1. Congressional Experimentation with Separation of 
Functions: The Taft-Hartley Act and the Conununications 
Act 

In 1947, the year following the enactment of the APA, Congress passed the 
Taft-Hartley Act,'^^ which amended the National Labor Relations Act, and 
which, among other things, imposed a strict separations-of-functions structure 
upon the administration of the Labor Act. 

Under the Taft-Hartley Act, the General Counsel of the National Labor 
Relations Board was made independent from the Board through provision for 
appointment by the President with the consent of the Senate and for a term of 
years. Because the General Counsel supervises the issuance of complaints, the 
Taft-Hartley Act eliminated any appearances of unfairness arising from the 



'^Congress reacted to Wong Yang Sung by excluding deportation and exclusion proceedings 
from §§554, 556 and 557 of the APA in a Supplemental Appropriations Act of 1951. 
Subsequently, in §242(b) of the Immigration and Nationality Act of 1952, Congress provided 
substitute procedures for exclusion and deportation. Under the 1952 Act, special inquiry officers 
were substituted for hearing examiners qualified under the APA. 66 Stat. 209, 8 U.S.C. 
§1252(b). Anticipating the procedural provisions of the 1952 Act was H.R. 6652, 80ih Cong., 
2d Sess. (1948), which was proposed when some lower courts had reached the same resuh as 
Wong Yang Sung. See H.R. Rep. No. 2140, 80th Cong., 2d Sess. (1948). Although the 
separation-of-functions provisions of the APA are omitted, many other provisions of the APA 
have analogues in the 1952 Act. See Marcello v. Bonds, 349 U.S. 302 (1955). 

'°'349 U.S. 302 (1955). 

'^Ch. 120, 61 Stat. 136 (1947) (codified as amended at 29 U.S.C. §§141-87 (1988)). 



806 Verkuil, Gifford, Koch, Perce, and Lubbers 



earlier structure, which had combined in the Board the functions of overseeing 
prosecution and adjudicating. 

In amendments to the Communication Act enacted in 1952,'^^ the Congress 
forbade hearing examiners presiding in Communications Act proceedings to 
consult with others about any matter whatsoever. As a result, hearing 
examiners were more insulated from staff assistance on policy questions or 
background information than §554 of the APA required. 

The result of this isolation was that the examiners had to operate in 
ignorance of new policy developments within the agency. Accordingly, their 
decisions could not reflect those developments and, to the extent that those 
developments were relevant to the Commission's decision, the examiners' 
decisions could not focus argument before the Commission on these issues. 
This insulation of hearing examiners may have exacerbated examiners' 
ignorance of relevant policies, since the Commission's substantive standards 
during this period were generally acknowledged to be unclear and in flux.'^ 
By 1962, the experiment was deemed a failure and Congress repealed the 1952 
legislation, restoring Communications Act adjudication to governance by the 
APA.'°^ 

2. The Recommendations of the Second Hoover Commission, 
Task Force on Legal Services and Procedures (1955) 

In 1955 the Task Force on Legal Services and Procedures of the Second 
Hoover Commission reconsidered some of the ground traversed by the 
Attorney General's Conmiittee and the APA. The Task Force recognized the 
difference between evidentiary factfinding and policymaking and sought to 
employ this distinction to improve agencies' operational efficiency. 

In the Task Force's view, hearing examiners should normally be expected 
to bear the responsibility for finding evidentiary facts. Indeed, the Task Force 
found wanting the provision of §557(b) that "[o]n appeal from or review of the 
initial decision, the agency has all the powers which it would have in making 
the initial decision, except as it may limit the issues on notice or by rule." 
Rather than entrust the agency with full responsibility over the decision, the 
Task Force believed that the division between the initial decision and agency 



'°366 Slat. 712, 721 (1952) 

'**The isolation of hearing examiners under the 1952 Communications Act amendments 
created a problem similar to that existing prior to 1938. In the pre-1938 period, Commission 
examiners' unfamiliarity with Commission policies caused examiners' reports to be misleading 
and an unsound basis for oral argument to the Commission. In 1938, the Commission responded 
to that problem by abolishing its staff of examiners and using an institutionally-prepared proposed 
decision as the focus of argument before the Commission. See Chapter n(A) supra. 

'°^5 Stat. 420 (1961). 



The Federal Administrative Judiciary 807 



review should correspond to the division between the decision of evidentiary 
facts and policy. Thus, the Task Force recommended that the agency should 
restrict review of hearing examiners' decisions to policy matters and to cases in 
which the examiners' decisions were not supported by substantial evidence.'*^ 

The Attorney General's Committee had originally taken the view that the 
agency generally ought to accept the decision of the hearing examiner except 
for policy questions or egregious mistakes of fact.'°^ In enacting the APA, the 
Congress clouded the relationship of the agency to the hearing examiners with 
the above-quoted provision of §557(b). The Task Force reverted to the 
approach of the Attorney General's Committee. The Attorney General's 
Conmiittee had made use of a two-tier decisional process primarily to deflect 
criticisms that evidentiary factfmding appeared to be skewed for policy 
reasons. That model was designed so that evidentiary facts could be 
determined by an independent adjudicator, while leaving the review stage for 
the agency's application of policy. The Committee almost certainly was 
motivated by efficiency considerations when it recommended the agency 
should normally accept the factual decisions of hearing examiners, although its 
reconmiendations were couched in the language of the relative decisional 
advantages hearing examiners possess when they decide factual issues upon 
evaluating witness credibility. Under the Task Force recommendations, that 
two-tier adjudicatory process—as it was embodied in the APA~would be 
modified in a manner consistent with the Attorney General's Committee's 
objective of providing a visibly unbiased decisionmaker to determine 
evidentiary facts.'* Implicit in the Task Force recommendation was the view 



'^Commission on Organization of the Executive Branch of the government, Task Force 
Report on Legal Services and Procedure, 203-06 (1955) (Recommendation No. 49 and 
supporting argumentation). 

'°^e Committee concluded: 

"In general, the relationship upon appeal between the hearing commissioner and 
the agency ought to a considerable extent to be that of trial court to appellate 
court. Conclusions, interpretations, law, and policy should, of course, be open 
to full review. On the other hand, on matters which the hearing commissioner, 
having heard the evidence and seen the witnesses, is best qualified to decide, the 
agency should be reluctant to disturb his fmdings unless error is clearly shown. 
And in the event that the agency does fmd facts contrary to those found by the 
hearing conunissioner, the agency's opinion should articulate with care and 
particularity the reasons for its departures, not only to disclose the rationale to 
the courts in case of subsecjuent review but to assure that the agency will not 
carelessly disregard the decision of the hearing commissioner." Final Report 

51. 

'*As a practical matter, the Task Force's recommendations appear to be most applicable in 
an agency whose caseload is not so large as to make it infeasible for the agency head to control 
policy by sitting as the final administrative review tribunal. 

A problematic aspect of the Task Force recommendations concerns the enforcement of the 
limitations on review. If the substantial evidence standard—which the Task Force recommended 



808 Verkuil, Gifford, Koch, Pierce, and Lubbers 



that by ensuring that effect is normally given to the ALJ decision, decisional 
resources will be efficiently employed. 



D. Congressional Attitudes Towards the Use of AUs During 

the 1970s 

During the period from the late 1950s through most of the 1970s, Congress 
vacillated over the desirability of requiring AUs to adjudicate benefit claims. 
The Social Security disability program was established in 1956. Although the 
heavy adjudicatory caseload to which the program gave rise was predicted in 
the legislative history of the Act, the Act was administered with AUs, 
probably because AUs had been used by the Social Security Administration to 
resolve the relatively small numbers of disputes that arose under the old age 
and survivors program the SSA had been administering since before the 



as governing agency review of hearing examiners— is to be an operational constraint, then alleged 
agency failures to conform to the substantial evidence standard would become additional grounds 
for judicial review of agency decisions. Adding these grounds to the concerns of courts 
conducting judicial review would apparently foster controversy, thereby undermining the 
efficiency objective underlying the Task Force recommendations. 

'^'^The right of a claimant to a hearing in conjunction with a denial of his claim under the old 
age and survivors insurance program had been established in the 1939 amendments to the Social 
Security Act. At that time the Act was administered by a three-member Social Security Board, 
located within the Federal Security Agency. The then-applicable procedures were extensively 
described in a staff monogra: prepared for the Attorney General's Committee. S. Doc. No. 10, 
Administrative Procedure in Government Agencies, Part 3 Monograph on the Social Security 
Board, 77th Cong., 1st Sess. (1941). Applications for benefits were initially reviewed in the 
adjudication section of the Board's Bureau of Old Age and Survivors Insurance. That section had 
170 adjudicators (each of whom disposed of from 12 to 15 cases per day) and 60 reviewers who 
acted as a check on the adjudicators. Denied claims were entitled to reconsideration, by different 
personnel from those who made the initial negative decision. After a negative decision on 
reconsideration, a claimant was entitled to a hearing. At the time of the AG Committee's staff 
monograph, no such hearings had as yet been held. The monograph reported, however, that the 
Social Security Board had selected 12 referees, one for each of the Board's 12 regions. 
Decisions of the referees would be appealable to a three-person Appeals Council. 

Apart from the old age and survivors insurance system, which was entirely administered by 
the federal government, the Social Security Board oversaw grants-in-aid to the states in 
conjunction with programs involving old age assistance, aid to dependent children, aid to the 
blind, unemployment compensation administration and employment service. State administration 
of these programs had to meet federal standards. Although differences between a state and the 
federal government were usually worked out in negotiations, federal funding could be terminated 
after state noncompliance was formally determined in a hearing before the Social Security Board. 



The Federal Administrative Judiciary 809 



By 1958, the large volume of disability cases on the adjudication calendar 
caused Congress to enact emergency legislation authorizing the Department of 
Health, Education and Welfare (HEW) to appoint non-AUs to help decide 
these cases. "° The measure authorized non-AU adjudication through 
December 31, 1959. A similar measure enacted the following year authorized 
non-AU adjudication through December 31, I960."* 

In 1972, when Congress established the supplemental security income (SSI) 
program, it considered whether AUs should be required to preside at 
adjudications, and concluded negatively. The House Report stated: 

Your committee recognized that many qualified persons who 
would be capable of hearing issues that arise under the 
program may not meet the specific requirements for 
appointment as hearings examiners under the Administrative 
Procedure Act, but might be a good source of examiners to 
hear issues arising under the program. Therefore, under 
your committee's bill, the Secretary would establish the 
requirements to be used in selecting examiners. Although 
the examiners would not be selected under the conditions set 
forth in the Administrative Procedure Act, full hearings 
would otherwise be conducted in accordance with the 
requirements of such act which include, for example, the 
right to submit evidence, to cross examine witnesses, to be 
heard by an in^artial examiner, and to a decision based on 
the hearing record. "^ 

The Committee's approach was embodied in the law as enacted. Included 
in the new legislation was a provision which stated that: 

To the extent that the Secretary finds it will promote the 
achievement of the objectives of this title, qualified persons 
may be appointed to serve as hearing examiners in hearings 
under subsection (c) without meeting the specific standards 
prescribed for hearing examiners by or under subchapter II of 
chapter 5 of title 5, United States Code."^ 



As of the dale of the monograph, only a handful of such hearings had been held, and all of those 
hearings apparently were presided over by the Board itself. See id. at 29. 

"^b. L. No. 85-766, 72 Sut. 864, 878 (1958). 

•"Pub. L. No. 86-158, 73 Stat. 339, 352 (1959). 

"Social Security Amendments of 1971, Report of the Comm. on Ways & Means, H.R. 
Rep. No. 92-231, 92d Cong., 1st Sess. 156 (1971). 

"^Pub. L. No. 92-603 §1631(d)(2) (previously codified in 42 U.S.C. §1383). 



810 Verkuil, Gifford, Koch, Pierce, and Lubbers 



By permitting non-AUs to preside at SSI (i.e.. Title XVI) cases, but not 
taking any action to modify the preexisting understanding that AUs were 
required to preside at Title II (old age, survivors and disability benefits) cases, 
the quoted provision injected an element into SSA administration with 
unexpected consequences. Writing in 1975 for the Disability Claims Process 
Task Force, its Chair observed that about 40% of SSI disability hearings 
involved denials of both Title XVI (SSI) and Title II (old age, survivors and 
disability insurance) benefits."" Since the above legislation permitted non- 
AUs only in Title XVI adjudications, adjudications that involved both Titles 
XVI and II were deemed to require AUs. The Chair also pointed out that the 
proportion of adjudications involving Titles XVI and II claims was larger than 
expected. As a result, the number of cases that could be handled by non-AUs 
was smaller than anticipated. The Chair concluded, however, that potential 
inefficiencies resulting from the inability to assign cases involving both Titles 
XVI and II to non-AUs were minimal, so long as there was a significant 
backlog for all types of cases. "^ 

The problem of not allowing non-AUs to preside at adjudications 
involving both Titles XVI and II may have been exacerbated by the Civil 
Service Commission's position that it lacked the legal authority to appoint 
AUs to hear Title XVI cases. In a report to the Conference, Professor Victor 
Rosenblum detailed the conflict over this issue between then HEW Secretary 
Casper Weinberger and then CSC Chair Robert Hampton, in fall 1973."^ 
Expressing his desire to establish an administrative structure that could handle 
a large volume of expected adjudications, Weinberger appeared anxious to 
expand existing decisional mechanisms (AUs) rather than experiment with the 
new office of non-AU decisionmakers. He was concerned the new office 
might not attract quality personnel and might be seen by the beneficiary class 
as second-class decisionmakers, 

Rosenblum suggested that CSC Chair Hampton initially indicated a 
willingness to respond affirmatively to Weinberger's request for more AUs, 
but that Hampton's initial position was changed by the full Commission, after 
protests from the Chairman of the Conference of Administrative Law Judges, 
the President of the Federal Administrative Judges Conference and the 



"''G.L. Boyd, Report of the Disability Claims Task Force, printed in Subcommittee on 
Social Security, H.R. Comm. on Ways and Means, Recent Studies Relevant to the Disability 
Hearings and Appeals Crisis 1, 142 (1975). 

'''Id. 

"^.G. Rosenblum, The Administrative Law Judge in the Administrative Process: 
Interrelations of Case Law with Statutory and Pragmatic Factors in Determining ALJ Roles, 
printed in Subcommittee on Social Security, H.R. Comm. on Ways and Means, Recent Studies 
Relevant to the Disability Hearings and Appeals Crisis 171, 225-227 (1975). 



The Federal Administrative Judiciary 8 1 1 



Chairman of the Committee of Administrative Law Judges of the Federal Bar 
Association.''^ The CSC then took the view that SSI hearings were not 
governed by the APA, and that as a result, the CSC had no authority to 
appoint AUs to hear SSI adjudications. 

By 1975 the Senate Finance Committee was complaining that the CSC's 
interpretation had exacerbated the SSA's hearing caseload problem and had 
effectively made the 1972 legislation counterproductive. In recommending 
changes in the legislation the Committee reasoned as follows: 

The first provision of the bill would amend Section 1631(c) 
of the Social Security Act to provide the same rights to 
hearing and administrative and judicial review with respect to 
claims under title XVI (Supplemental Security Income) of the 
Act as apply to title II (social security) and title XVII 
(medicare) claims under section 205(b) and 205(g) of the 
Act. This is necessary to override an interpretation of the 
Civil Service Commission that the Administrative Procedure 
Act was not applicable to SSI hearings and which required 
the appointment of non-APA hearings officers who could not 
hear social security and medicare cases. This action greatly 
exacerbated the current hearing crisis and the validity of SSI 
hearings has been challenged in the courts as second class 
justice. The committee bill will put this matter to rest by 
clearly providing on-the-record administrative hearings and 
judicial review of a parallel nature for social security, SSI, 
and medicare claimants."* 

The accompanying legislation explicitly authorized the non-AU hearing 
officers appointed under the 1972 legislation to preside at all SSA 
adjudications (Titles II, XVI and XVIII), but provided that the appointments of 
such hearing officers would terminate no later than December 31, 1978."^ 



"^Rosenblum, supra, at 226-227. 

"*S. Rep. No. 94-550, 94th Cong., 1st Sess. 3-4 (1975) 



"^b. L. No. 94-202 (1976) provided, inter alia, that §1631(d)(2) should be struck and that 
§163 1(d)(3) should be renumbered as §163 1(d)(2). It then included the following provision: 



812 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Two years later, Congress repealed the mandatory December 31, 1978 
termination date and by statute converted the hearing officers appointed under 
§163 1(d)(2) into permanent APA-qualified AUs.'^o 

During the same period in which Congress was vacillating about the 
desirability of requiring AUs to preside at SSI adjudications. Congress was 
also legislating with respect to AU adjudicators under other programs. In 
1972 Congress enacted the Black Lung Benefits Act and amended the 
Longshore and Harbor Workers Compensation Act (LHWCA). The Black 
Lung Act amended the provisions of the Coal Mine Health and Safety Act of 
1969. The 1972 Act revised the program— initially established under the 1969 
statute—for awarding compensation to miners for pneumoconiosis. The revised 
provisions divided the compensation mechanics into three types, depending 
upon the period (12/30/69-6/30/73, 7/1/73-12/31/73, and post-12/31/73) in 
which the claim was filed. First period claims were payable from federal 
government funds and administered by HEW under the SSA disability 
procedures. Second period claims were administered by the Labor Department 
but paid from federal government funds. Third period claims were to be 
administered under state workers compensation laws, or if they did not provide 
adequate coverage, then by the Labor Department. Beginning with the third 
period, the responsibility for payment was to be borne by the employers. 
Second and third period claims were to be administered by the Secretary of 
Labor, but in describing the procedures to be followed, the Black Lung Act 
incorporated the procedures of the LHWCA "as amended. " 

Until its 1972 amendment, the LHWCA had provided for the adjudication 
of claims by a deputy commissioner, an agency employee possessing none of 
the protections of ALJs. In 1972 Congress amended the LHWCA to provide, 
inter alia, that adjudications would be decided by ALJs.'^' In recommending 



The persons appointed under section 1631(D)(2) of the Social Security Act (as 
in enect prior to the enactment of this Act) to serve as hearing examiners in 
hearings under section 1631(c) of such Act may conduct hearings under titles II, 
XVI, and XVIII of the Social Security Act if the Secretary of Health, Education, 
and Welfare finds it will promote the achievement of the objectives of such 
titles, notwithstanding the fact that their appointments were made without 
meeting the requirements for hearing examiners appointed under section 3105 of 
title 5, United Slates Code; but their appointments shall terminate not later than 
at the close of the period ending December 31, 1978, and during that period 
they shall be deemed to be hearing examiners appointed under such section 
3105 and subject as such to subchapter II of chanter 5 of title 5, United States 
Code, to the second sentence of such section J 105, and to all of the other 
provisions of such title 5 which apply to hearing examiners appointed under 
such section 3105. 

'20pub. L. No. 92-216, 91 Stat. 1559 (1977). 

'2>Pub. L. No. 92-576 §14, 86 Stat. 1251 (1972), codified as amended in 33 U.S.C. §919(d) 



(1988): 



The Federal Administrative Judiciary 8 1 3 



the amendment of the procedural provisions of the LHWCA, the House 
Conmiittee stated its behef that the administration of the Act "has suffered by 
virtue of the failure to keep separate the functions of administering the 
program and sitting in judgment on the hearings."'^ The Committee also 
indicated that because other provisions of the amending legislation imposed 
new responsibilities on the Labor Secretary, the Secretary would need to use 
the deputy conmiissioners as "full time administrators" who would be released 
from their hearing duties.'^ 

While the amendment of the LHWCA imposed ALJ-type adjudications on 
LHWCA claims, the status of black lung adjudication was unclear. The Black 
Lung Act incorporated by reference the procedures required under the 
LHWCA "as amended," but the Black Lung Act was enacted in May 1972 
while the 1972 LHWCA amendments were not enacted until the following 
October. Congress was considering both the LHWCA amendments and the 
Black Lung Act at the same time, so the reference of the Black Lung Act to the 
procedural provisions of the LHWCA may have been intended to refer to the 
amendments then in process. Nonetheless, because the LHWCA in force when 
the Black Lung Act was enacted did not require using ALJs, the Black Lung 
Act (which incorporated LHWCA procedures) could be construed as not 
requiring use of ALJ adjudicators. The CSC took the view that the Black 
Lung Act incorporated the earlier version of LHWA procedures and, 
accordingly, refused to appoint ALJs to hear black lung cases. '^ 

The Secretary of Labor reacted to the CSC's refusal to appoint ALJs to 
adjudicate black lung cases by issuing a regulation'^ authorizing non-ALJs to 
adjudicate cases under section 415 and Part C of the Black Lung Act (i.e., the 
second and third period claims administered by the Labor Department). 



"Notwithstanding any other provisions of this Act, any hearing held under this Act shall be 
conducted in accordance with the provisions of section 554 of title 5 of the United States Code. 
Any such hearing shall be conducted by a hearing examiner qualified under section 3105 of that 
title " 

'^H.R. Rep. No. 92-1441, 92 Cong., 2d Sess (1972), reprinted m 3 U.S.C.C.A.N. 4698, 
4708 (1972). 

^^See discussion in Director, Office of Workers' Compensation Programs, U.S. Dep't of 
Labor v. Eastern Coal Corp., 561 F.2d 632 (6th Cir. 1977); Director, Office of Workers' 
Compensation Programs, U.S. Dep't of Labor v. Alabama By-Products Corp., 560 F.2d 710 (5lh 
Cir. 1977). 

'^20 CFR §715.101(a)(27)(1976). 



814 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Congress, in turn, responded to the CSC by enacting a series of temporary 
authorizations for adjudications by non-AUs.'^ Finally, Congress enacted a 
joint resolution authorizing non-AUs to adjudicate black lung claims (under 
parts B and C of the Black Lung Act).'^^ Uncertainty over black lung 
adjudication finally was resolved by enactment of the Black Lung Benefits Act 
of 1977. '28 The 1977 legislation, by modifying the reference to the LHWCA 
to read "as amended from time to time,"'^ made it clear that all changes to the 
LHWCA procedures regardless of their dates of their enactment were to be 
incorporated into Black Lung Act adjudications. 

Congress' action in revising the LHWCA to require ALJ adjudicators was 
intended not only to impose those procedures upon LHWCA proceedings and 
black lung adjudications, but to other programs as well. The Defense Base 
Act,'^ the Outer Continental Shelf Lands Act>^' and the Nonappropriated Fund 
Instrumentalities Act'^^ all incorporate LHWCA provisions (including its 
procedural provisions). The debates over the 1972 amendments to the 
LHWCA show Congress' awareness that it was designing a statute that 
establishes procedure broadly for claims falling under statutes that incorporate 
the LHWCA procedures by reference. It would probably be wrong to describe 
the LHWCA procedures as those that Congress determined should govern all 
administrative proceedings, however, because the LHWCA and the statutes 
incorporating its procedures all appear to be workers compensation-type 
statutes. 



'2^b. L. No. 93-192, 93d Cong., 1st Sess., 87 Stat. 746, 758 (1973); Pub. L. No. No. 93- 
517, 93d Cong., 2d sess., 88 Stat. 1636 (1974); Pub. L. No. No. 94-206, 94th Cong., 1st Sess., 
90 Sut. 7 (1975); Pub. L. No. 94-439, 90 Stat. 1420 (1976). 

'^''Pub. L. No. 94-405, 90 Stat. 2428 (1976) [codified in 30 U.S.C. §932a (1988)] provided 
that: 

'Qualified individuals appointed by the Secretary of Labor may hear and determine claims 
for benefits under part C of title IV of the Federal Coal Mine Health and Safety Act of 1969 [30 
U.S.C. 931 et scq.J and under section 415 of such Act [30 U.S.C. 925]. For purposes of this 
section, the term 'qualified individual' means such an individual, regardless of whether that 
individual is a hearing examiner appointed under section 3105 of title 5. Nothing in this section 
shall be deemed to imply that there is or is not in effect any authority for such individuals to hear 
and determine such claims under any provision of law other than this section." 

'2»Pub. L. No. 95-239, 92 Stat. 95 (1978). 

'2^b. L. No. 95-239 §7(g)(i), 92 Stat. 100 (1978), codified in 30 U.S.C. §932 (1988). 

'^*^e Defense Base Act, 42 U.S.C. §§1651-1654 (1988), incorporates the LHWCA in 
11651(a). 

'3'The Outer Continental Shelf Unds Act, 43 U.S.C. §§1331-1356 (1988), incoiporates the 
LHWCA in §1333(b). 

'^^e Nonappropriated Fund Instrumentalities Act, 5 U.S.C. §§8171-8173 (1988), 
incorporates the LHWCA in §8 171 (a). 



The Federal Administrative Judiciary 8 1 5 



E. Evolution of Benefit Adjudication Over Time 

The prevailing pre- World War II view was that benefit decisionmaking was 
significantly different from regulatory decisionmaking. Thus, the Attorney 
General's Committee described benefit determinations in the Veterans 
Administration as institutional decisions in which a "hearing" was only a 
component of a larger decisional process J^^ This description probably fit a 
process in which an initial evaluation of documents generally disposed of most 
cases. When a hearing was held, the hearing officers (a "rating board" in the 
case of the Veterans Administration) were able to use earlier bureaucratic 
investigation of the case. The sense that the actual hearing constituted only 
part of a larger process that embodied the prehearing investigation was 
probably reinforced in the minds of the AG Committee'^ by the fact that 
benefit decisionmaking traditionally has been carried out in a largely 
nonadversarial format. The format was one in which the claimant was not 
represented by counsel and in which the hearing officer was responsible for 
bringing out all sides of the case and for drawing on information from the 
prehearing record. 

Traditionally, the claimant in most benefit adjudications is not represented 
by an attorney. In adjudications before the Veterans Administration, statutory 
fee limitations have effectively precluded attorneys from representing all but 
the smallest fraction of claimants, '^^ although most claimants are represented 
by various veterans' organizations.'^ In SSA adjudications involving disability 
claims, the claimants are often financially unable to pay an attorney and, 
unless the claim includes significant past due payments, even a favorable 
decision will not provide the funds with which to pay legal fees. The 
proportion of SSA claimants represented by attorneys, however, is growing. 
Although as late as 1980 Davis reported that 70% of social security claimants 
were unrepresented by counsel, '^^ by fiscal 1986 65% of claimants were 
represented by counsel and another 18% were represented by nonattomeys.'^ 

'^^Final Report 55. See also Administrative Procedure in Government Agencies, Monograph 
(Part 2: Veterans Administration), S.Doc. No. 186, 76th Cong., 3d Sess 22 (1940). 

'^In its Final Report, the AG Committee described benefit adjudications as involving 
"claimants who often represent themselves and who should be encouraged to tell their own stories 
as simply and naturally as possible. There, the atmosphere of sympathetic conversation is best 
conducive to proper administration." Final Report 69. 

^"^^See Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305 (1985). 

'■during fiscal year 1990, 87.6% of appellants before the Board of Veterans Appeals were 
represented by veterans service organizations, 1.6% were represented by attorneys, and 10.8% 
were unrepresented. Secretary of Veterans Affairs, Annual Report 47 (FY 1990). 

'^^K.C. Davis, 3 ADMiNiyrRATivE Law Treatise §17.13 at 321 (2d ed. 1980). The SSA 
Office of Hearings and Appeals reported that for fiscal 1980 48% of claimants were represented 



816 Verkuil, Gifford, Koch, Pierce, and Lubbers 



When claimants are not represented by counsel in benefit proceedings in 
the SSA and the Veterans Administration, the proceeding fits the model of a 
pure inquisitorial proceeding, since the government is also unrepresented. In 
these circumstances, the proceeding loses the adversary flavor present in a 
regulatory adjudication. Here, the AU is responsible for bringing out all sides 
of the case, and then making a decision. In 1941 the Attorney General's 
Committee described the atmosphere of such a hearing as one "of sympathetic 
conversation."'^^ In 1971, the U.S. Supreme Court reviewed this 
"inquisitorial" format and found it to be consistent with the requirements of 
both due process and the APA.'* 

Several factors not connected directly with federal adjudication probably 
have indirectly affected the way the public, the legal profession generally, and 
federal officials (including AUs) approach benefit adjudication. The Supreme 
Court's 1970 decision in Goldberg v. Kelly^*^ may have had symbolic 
importance extending beyond the particular issues involved in that case. 
Goldberg ratified the broad movement in welfare administration away from 
one in which social workers exercised significant discretion in administration 
to a model in which the entitlement of claimants to benefits was determined 
under sets of relatively precise criteria and administered by clerks. ''*' Goldberg 
also set the stage for a rethinking of government benefits as constitutionally 
protected "property" interests. 

As federal benefit programs have moved towards an entitlement format 
they have tended to move, as well, towards greater formality: the less that 
discretion enters into benefit decisions, the more are those decisions amenable 
to judicialization and the more likely are benefit decisions to resemble trial 
proceedings. The Supreme Court imposed a procedure resembling a trial 
format on state welfare administration in Goldberg. A broad movement 
towards formality in state welfare administration is likely to influence federal 
administration in the direction of greater formality as well. Thus, for 
example, the growing practice of claimants' seeking representation by counsel 
in disability proceedings reflects a new and apparently increasing awareness by 
claimants of a need to press their cases and an increasing unwillingness to trust 
a paternalistic "inquisitorial" procedure. This use of counsel almost 

by counsel and 15% were represented by nonattomeys. HHS, Operational Report of the Office 
of Hearings and Appeals 25 (Sept. 30, 1986). 

'^HHS, Operational Report of the Office of Hearings and Appeals 25 (Sept. 30, 1986). 

•^^inal Report 69. 

"^chardson v. Perales, 402 U.S. 389, 408-10 (1971). 

''"397 U.S. 254(1970). 

^^'^See Simon, Legality, Bureaucracy and Class in the Welfare System, 92 Yale L. J. 1198 
(1983). 



The Federal Administrative Judiciary 817 



necessarily forces a higher degree of formality upon the proceedings. The 
more that adjudications involve claimants' use of counsel and the more that 
counsel exerts influence over the direction of the hearing, the more likely it is 
that the aggregate adjudicatory burden borne by an agency such as SSA 
increases, since the presence of counsel and the consequent increased 
procedural formality will tend to increase the time expended for adjudication 
of each case. 

1. Longshore and Harbor Workers Compensation Act and 
Related Legislation 

Congress enacted the Longshore and Harbor Workers Compensation Act in 
1927 to provide workers-compensation type protection to dock workers. That 
Act has subsequently been extended to cover other groups of workers, and has 
been as incorporated into other legislation extending workers compensation 
coverage. District of Columbia employees are protected under the LHWCA 
and, as noted above, the procedures of the LHWCA have been incorporated 
into the Defense Base Act, the Outer Continental Shelf Lands Act, the 
Nonappropriated Fund Instrumentalities Act, and the Black Lung Act."'^ 

Until 1972 adjudications under the LHWCA were conducted by a deputy 
commissioner with review in a federal district court. Under the 1972 
amendments, the deputy commissioners retain their prior authority of 
investigating claims, but adjudication is separated and placed before an APA- 
qualified AXJ.'"*^ The AU's decision is subject to review by a Benefits Review 
Board''*^ under a substantial evidence standard.'^ Further review lies in a U.S. 
Court of Appeals. '^^ As explained above, the effect of the LHWCA 
amendments on black lung adjudication was unclear for a 5-year period in the 
1970s. This was resolved by legislation in 1977 that specifically incorporated 
all amendments to LHWCA procedures into the Black Lung Act. Black lung 
benefit decisions are now made in the same way as other federal workers' 
compensation decisions. Although the administration of black lung benefits 
has been moved towards a judicial model by separating adjudication from the 



^^^See Chapter 11(D) supra. 

^^3 U.S.C. §919(d) (1988). 

'^^33 U.S.C. §92I(b) (1988). 

'^3 U.S.C. §921(b)(3) (1988). Subjecting the AU's decision to that of a reviewing 
administrative appellate tribunal resembles the recommendation of the Hoover Commission Task 
Force. The LHWCA provision differs from the Task Force recommendation, however, because 
the Task Force was concerned with review of an ALJ decision by the agency head rather than 
review by a reviewing tribunal, which was not itself the agency head. 

'^''33 U.S.C. §921(c) (1988). 



818 Verkuil, Gifford, Koch, Pierce, and Lubbers 



investigative work done by the deputy commissioners, the Secretary's 
responsibility for overall administration of the benefit program appears to be 
recognized in his absolute power to remove members of the Benefits Review 
Board. »« 

2. Veterans Benefits Distinguished 

Veterans benefit adjudication has evolved over the years from a system of 
relative informality towards greater formality. The Attorney General's 
Committee monograph on the Veterans Administration described a system of 
benefit administration under which most claims were decided on the basis of 
documentary evidence and physical examination without a hearing. The 
hearings that were held in a small proportion of cases (10%) were considered 
an adjunct to the file of relevant information, most of which was collected 
prior to the hearing. When a hearing was held, it was held before one of the 
"rating boards" that existed in each of 52 regional offices in addition to the 
Central Disability Board located in Washington, D.C''^ Rating boards were 
composed of three specialists: a claims specialist, an occupational specialist 
and a medical specialist. Appeal from the rating board was to the Board of 
Veterans Appeals, a 26-member group that sits in 3-member panels. 

Recent descriptions of decisionmaking within the Veterans Administration 
appear remarkably similar to the description contained in the Attorney 
General's 1940 monograph.'* A 1985 Supreme Court decision describes a 
decisionmaking process that involves three-person rating boards (composed of 
medical, legal and occupational specialists), and requests by the board for 
claimant's medical records and a medical examination by a VA hospital. 
Currently, hearings at the regional level appear to be held before a two- or 
three-member board. An appeal at the regional office level is conducted by a 
single hearing officer. (A single hearing officer also presides over initial 
hearings held in conjunction with a proposed reduction in benefits.) Appeal 
then lies to the Board of Veterans Appeals. 

Limitations on attorney fees have always impeded the representation of 
veterans by attorneys in benefit adjudications but veterans have long been 
represented by veterans' service organizations. The staff monograph of the 
Attorney General's Committee reported that in the 10% of cases in which a 
hearing was held, 70% of the claimants were represented, generally by a 



''^Kalaris v. Donovan, 607 F.2d 376 (D.C. Cir. 1983), cert, denied, 462 U.S. 11 19 (1983). 

'^^Administrative Procedure in Government Agencies, Monograph (Part 2: Veterans 
Administration), S. E>oc. No. 186, 76th Cong., 3d Sess 4 (1940). 

'^See, e.g., Walters v. National Ass'n of Radiation Survivors, 473 U.S. 305, 309-311 
(1985). 



The Federal Administrative Judiciary 8 19 



veterans' service organization. Claimants were represented in approximately 
one-third of the cases appealed. In more recent years the percentage of 
claimants represented in appeals has risen from the one-third reported in the 
Attorney General's Committee monograph to 89.2% in fiscal 1990 (87.6% by 
Veterans service organizations and 1.6% by lawyers).'^' 

There are structural reasons for believing that the claims adjudication 
process is becoming more formal. The Board of Veterans Appeals, originally 
created by Executive Order in 1933, was established by statute in 1958. 
Although this was a step in the direction of formality, the decisions of the 
Board were expressly exempted from judicial review until 1988.'" In 1988, 
Congress established the Court of Veterans Appeals as an Article I Court,'" to 
review Board decisions.'^ The Court of Veterans Appeals Decisions are 
subject to review on issues of law by the U.S. Court of Appeals for the 
Federal Circuit. '^^ 

Subjecting Board of Veterans Appeals decisions to judicial review means 
that those decisions must have support in the record and be accompanied by an 
explanation satisfactory to the reviewing court. These requirements, in turn, 
will have an impact upon the procedure below. Moreover, claimants will now 
have a forum in which to assert their objections to procedural deficiencies at 
the administrative level. In combination, these aspects of judicial review 
should exert significant pressures towards greater formality in the procedures 
before the rating boards and the Board of Veterans Appeals. 

The Committee reports on the recent legislation indicate the Board of 
Veterans Appeals had followed a practice of giving no deference to the prior 
decision of the Administrator.'^ Such a practice suggests that even prior to the 
recent legislation, veterans benefit decisions had not been products of a so- 



'^'Sec'y Veterans Affaire, Ann. Rep't 47 (FY 1990). In WaUere v. National Ass'n of 
Radiation Survivore, 473 U.S. 305, 312 n.4 (1985), the Court referred to 88% of claimants being 
represented before the Board, in which 86% of the 88% involved representation by veterans 
service organization and the other 2% involved represenution by attorneys. 

'5^38 U.S.C. §21 1(a) (1982) (repealed). 

'^H^eterans Judicial Review Act of 1988, Pub. L. No. 100-687, 102 Stat. 4105 (1988), 
codified at 38 U.S.C. §§4051-4092 (1988). 

'^8 U.S.C. §4052 (1988). 

'^^8 U.S.C. §4092 (1988). 

'^.R. Rep. No. 963, 100th Cong., 2d Sess 7 (1988). The Committee refere with approval 
to this practice of no deference. Under the new statute, however, the Board is bound by "the 
regulations of the Veterans Administration, instructions of the Administrator, and the precedent 
opinions of the chief law ofTicer." 38 U.S.C. §4004(c) (Supp. 1988). The legislative history 
suggests, therefore, that the new Board will not be bound by the Administrator's factual decisions 
but will be bound by the Administrator's policies. This was probably the case prior to the 
legislation as well. 



820 Verkuil, Gifford, Koch, Pierce, and Lubbers 



called institutional or collective process and that the Board possessed and 
exercised significant decisional independence.'^^ 

3. Social Security Disability Adjudication Compared 

Despite the characterization of benefit decisionmaking as largely 
institutional, Congress has, from the late 1930s, required that Social Security 
claimants be afforded an opportunity to be heard when disputes about coverage 
or amounts arose. '^ Accordingly, when the APA was enacted in 1946, it was 
understood that hearings under the Social Security Act would be presided over 
by APA-qualified hearing examiners. '^^ 

The relatively small volume of cases SSA handled prior to the enactment of 
the disability coverage provisions in 1956 made the matter of APA coverage 
one of less than critical importance. The enactment of the disability program, 
however, generated a large increase in adjudications, because the standard for 
disability has proved extremely hard to define at the edges. Since then, the 
SSA's volume of adjudications has risen dramatically. Under pressure of this 
rising caseload, Congress in 1958 and 1959 extended two 1-year authorizations 
to the SSA to employ non-APA hearing examiners. 

In 1972 Congress enacted the supplemental security income program. This 
new program again vastly expanded the SSA's adjudicatory caseload. Perhaps 
to accommodate this new caseload burden. Congress initially authorized non- 
ALJ adjudicators for SSI cases. This authorization failed to reap the benefits 
Congress anticipated, because AUs were required to adjudicate Title II (old 
age, survivors, and disability) claims, and Title XVI claims substantially 
overlapped Title II claims. Although HEW Secretary Weinberger sought to 
avoid these difficulties by using AUs to decide SSI cases, the administrative 
difficulties were made worse due to CSC's refusal to appoint AUs to decide 
SSI cases. Congress ultimately reversed its position and required AU 
decisionmakers for SSI cases, but accorded APA-qualified status to the non- 
AUs who were appointed under the provisions of the original legislation.'^ 

It is possible to draw the inference that when Congress extended temporary 
authorizations to use non-AU adjudicators under Title II in the late 1950s, it 
was recognizing that without those authorizations, AUs would have been 
required. It is just as probable, however, that Congress was merely reacting to 
a crisis: that AUs had historically been used to preside at SSA adjudications; 



^^"^See Gifford, Adjudication in Independent Tribunals: The Role of an Alternative Agency 
Structure, 66 NotreDameL. Rev. 965, 1004-05 (1991). 
^^See Chapter U(D), supra. 
'''Id. 



The Federal Administrative Judiciary 821 



that when the disability program was established, APA-qualified AUs were 
used to adjudicate disability claims because the SSA had always used ALJ 
adjudicators; and that when the SSA faced a hearing backlog, Congress' 
temporary authorization for non-AU adjudication was merely intended to 
provide relief to the SSA without revising the SSA's decisional format. Under 
such a view. Congress would not have faced the larger question as to whether 
Title II proceedings were or were not governed by the APA or whether they 
required APA-qualified AUs as presiding officers. 

With the huge caseloads that the SSA now handles, problems of 
productivity, consistency and policy control have become matters of high 
saliency. The SSA has sought to increase decisional workload of the AUs 
with significant success. Average AU decisions per month have risen from 14 
to approximately 38 in fiscal year 1989.'^' This emphasis on productivity has 
not been without conflict, however. SSA efforts to enhance AU productivity 
have been assailed as invasions of AU independence, and the SSA has 
occasionally had to defend the lawfulness of its productivity enhancement 
efforts in litigation. 

In addition to the productivity problems created by the huge SSA 
adjudicatory caseloads, the extremely high volume of disputes combined with 
an administrative structure that hampers SSA's attempts to achieve policy 
control has produced considerable decisional inconsistency throughout the 
entire program. 

The disability program is administered in the first instance by state agencies 
whose decisions are ultimately appealable to a federal AU. The AU's 
decision is appealable to the SSA's Appeals Council (an internal reviewing 
tribunal whose members are appointed by the SSA)'*'^ and reviewable by a 
federal district court. Many AUs apparently do not accept SSA directives 
observed by the state agencies, thereby undermining the SSA's ability to 
control program administration,'^^ and contributing to the significant overall 
reversal rate in decisions appealed to the AUs from the state agencies. In 
addition to the overall inconsistency between the state agency decisions and the 
AU decisions in the aggregate, the decisions of the AUs have exhibited 
significant inconsistencies among themselves.'^ TTiis inconsistency is of long 



"^'SSA Office of Hearings and Appeals, Key Workload Indicators 1 (3d Quarter, FY 1991). 

^^^See Koch & Koplow, The Fourth Bite at the Apple: A Study of the Operation and Utility of 
the Social Security Administration's Appeals Council, 1987 ACUS 625, reprinted in 17 Fla. 
State U. L. Rev. 199, 231-240 (1990). 

^^^See Koch & Kaplow, supra note 162 at 280; Gifford, supra note 157 at 1009. 

^^See J. Mashaw, C. Goetz, F. Goodman, W. Schwartz, P. Verkuil, M. Carrow, Social 
Security Hearings and Appeals 21-24 (1978); R. Dixon, Jr., Social Securfty Disability and 
Mass JuyricE: A Problem in Welfare Adjudication 76-79 (1973). 



822 Verkuil, Gifford, Koch, Pierce, and Lubbers 



standing. It has been documented in studies and it has been the subject of 
sustained attention from the SSA itself and from Congress. 

The SSA has attempted to exert control over its vast caseload by increasing 
the number and complexity of its regulations and other decisional standards. It 
has also instituted management controls involving, inter alia, the independent 
review and evaluation of selected AU decisions. 

In 1980 Congress mandated supervisory review of AU decisions as part of 
a quality control program.'^ Based on this legislation, the SSA implemented 
a program involving review of AU decisions by the SSA's Appeals Council 
on the Council's own motion. Although Appeals Council review helps reduce 
the inconsistency of AU decisions and helps in a limited way to promote the 
application of SSA policy, the volume of adjudications is so large the Appeals 
Council cannot be the SSA's prime instrument for achieving decisional 
consistency and policy conformity. Moreover, the SSA's efforts to subject 
AUs with a high grant rate to automatic own-motion review has been 
criticized as one-sided.'*** During the last 15 years the Appeals Council has 
instituted review of AU decisions on its own motion. One SSA regulation 
provided for Appeals Council review under standards permitting reversal when 
the AU's decision was not supported by substantial evidence or when broad 
policy questions were involved.'*^ This regulation resembles the 
recommendation of the Hoover Commission Task Force, which called for 
agency review of AU decisions when the AU decision was not supported by 
substantial evidence or when broad policy questions were present. The 
substantial -evidence part of that standard is also substantially identical to the 
standard governing review of AU decisions by the Benefits Review Board 
contained in the LHWCA.'« 

Although the SSA regulation provoked a significant amount of litigation, 
the Appeals Council has been upheld in granting own-motion review so long as 
its own decision is supported by substantial evidence (even though the AU 
decision was also supported by substantial evidence).'^ 



'^"Social Security Disibility Amendments of 1980, Pub. L. No. 96-265, §304(g) 94 Sut. 
441, 445-56 (1980) 

'<^ee, e.g., Barry v. Heckler, 620 F.Supp. 779, 782 (D. Calif. 1985) 

"'''20CFR §404. 970(a). 

'^33 U.S.C. §921(b)(3) (1988). 

'^See, e.g., Welch v. Heckler, 808 F.2d 264, 267 (3d Cir. 1986). 



The Federal Administrative Judiciary 823 



F. Evolution of Nonbenefit Adjudication Over Time 



1. Use of Intermediate Review Boards 

Since the Attorney General's Committee was established, review boards 
were recognized as an effective means to deal with appeals from many hearing- 
examiner decisions.'^ In the early 1960s review boards were established for 
the Federal Conmiunications Commission'^' and the Interstate Commerce 
Commission.'^ After a study of these two boards,'^ the Conference 
subsequently endorsed such boards as a way to reduce the burden created by 
the need to review voluminous caseloads.'^'* 

Review boards have sometimes been criticized for eroding an APA 
decisional structure designed to confer decisional independence upon the AUs. 
According to this argument, a decision made by an "independent" AU is 
imdermined when it is subject to revision, not merely by the agency head as 
contemplated by the APA, but by a board composed of agency officials who 
do not possess the independence of AUs. 

An answer to this criticism may be that the APA's design is to ensure that 
the initial decision is made by an adjudicator possessing statutory safeguards 
over his or her independence. The reason for this is to assure the parties and 
the public that the evidentiary facts are being decided fairly and accurately. 
The APA, however, was not designed to enshrine the ALJ's decision. It was 
designed to protect the AU's decision on the evidentiary facts from being 
skewed for policy reasons. By providing that "[o]n appeal from or review of 
the initial decision, the agency has all the powers which it would have in 
making the initial decision," the APA contemplates that the AU's decision is 
subject to broad-based review by the agency head. When an AU's decision is 
revised by a review board, that board is acting on behalf of the agency head 
and is exercising the agency head's power of revision. 



''''^inal Report 53. 

'■"Pub. L. No. 87-192, §2, 75 Stat. 420 (1961) (codified as amended as 47 U.S.C. §155 
(1988). 5tfe 47 CFR §0.161 (1990). 

'^Pub. L. No. 87-247, 75 Stat. 517 (1961) (codified as amended at 49 U.S.C. §10322 
(1988)). 

'^Freedman, Report of the Committee on Agency Organization and Procedure in Support of 
Intermediate Appellate Boards: Subparagraph 1(a) of Recommendation 6, in 1 ACUS 125, 128- 
37 (1971); Freedman, Review Boards in the Administrative Process, 117 U. Pa. L. Rev. 546, 
549-58 (1969). 

' ''''Recommendation 68-6, 1 CFR §305.68-6, 1 ACUS 20-22, 122-24 (1968-70). 



824 Verkuil, Gifford, Koch, Pierce, and Lubbers 



2. The Split-Enforcement Model of Regulation 

Under the Occupational Safety and Health Act, the Secretary of Labor 
administers a regulatory program that is administered primarily by rulemaking 
and enforced by the issuance of citations (imposing monetary sanctions) 
against violators. Employers charged with violating a safety and health 
standard are entitled to a hearing before an ALJ with review before the 
Occupational Safety and Health Review Commission, an independent 
adjudicatory tribunal. The Federal Mine Safety and Health Act employs a 
similar procedural format. Under both acts policy is formulated in 
rulemaking, and adjudication is relieved from the burden of policymaking that 
was borne by the traditionally structured unitary regulatory agencies. ALJ 
decisions under both acts are reviewed by a reviewing tribunal, which is an 
agency separate and independent from the enforcement agency. 



G. The Growth of Benefit Adjudication and the Decline of 
Economic Regulatory Adjudication as a Vehicle for Major 

Policymaking 



1. The Regulatory Model That Gave Rise to the Office of 
Independent ALJs 

The regulatory model that gave rise to the position of independent ALJs 
was the one in principal use during the 1930s and 1940s and that generated 
concern about adjudicatory fairness. The widely expressed concerns about the 
fairness of regulatory agency adjudications described earlier were based on the 
fact that the regulatory agencies— as institutions— issued their own complaints 
and then heard the cases upon which the complaints were issued and 
adjudicated them. Agencies operating in this manner appeared, at least to the 
uninitiated, to violate the canon that no one should be a judge in his or her 
own cause. As previously noted, there were important reasons for combining 
these prosecutorial and judging functions within one institution: if policy was 
to be formulated in the process of case-by-case adjudication, then the agency 
head who was responsible for the development of policy had to be the fmal 
agency adjudicator. Moreover, the agency head had to have ultimate control 
over complaint issuance decisions, so that the cases raising the proper policy 
issues could be brought before the agency head for adjudication and ultimate 
resolution of the policy issue. 

The Attorney General's Committee sought to eliminate or reduce the 
perception that the agencies were operating unfairly by recommending that 
within the large agency organization the functions of investigation and 



The Federal Administrative Judiciary 825 



prosecution be separated from the functions of hearing and judging cases. For 
our purposes, the most important of the Committee responses to the problem 
of widespread distrust of the fairness of agency adjudications was the 
Conmiittee's recommendation that hearing examiners be given the status and 
degree of independence that would encourage them to exercise independent 
judgment. This approach of the Attorney General's Committee was 
incorporated in the APA. 

It will be observed that the approach of the Attorney General's Committee 
and the APA towards independent hearing examiners was a response to a 
particular widely felt concern with the operation of a particular model of 
regulation: that of the regulatory agency making policy through the 
adjudication of cases. This model engendered concern over the fairness of the 
adjudicatory process; the creation of the office of independent hearing 
examiner was a response to this concern. The creation of that office helped to 
ensure that evidentiary fact determinations were not being skewed or otherwise 
distorted to reach a result ordained by policy. 

2. The Growth of Benefit Adjudication 

When the Attorney General's Committee recommended the creation of the 
office of independent hearing examiner, it was focusing on the operation of 
regulatory agencies. Benefit adjudication was not a matter of primary concern 
to the Conmiittee, and there is ground for the belief that the Committee viewed 
benefit adjudication very differently from regulatory adjudication. 

Benefit adjudication usually involves the disposition of numerous claims- 
far too many for both the agency head to sit as an adjudicator and for 
adjudication to play the primary policy formulation role. For that reason, 
policy questions generally have to be resolved by regulation, directive, ruling 
or method other than the unaided use of adjudicatory decisions as precedent. 
Thus, the model of agency operation giving rise to the creation of independent 
hearing examiners—the model in which the agency head makes policy in 
adjudications— does not apply to the administration of benefit programs. 

Since the enactment of the APA, federal benefit adjudication has grown 
astronomically. Benefit adjudication under the aegis of the Social Security 
Administration in 1947 (when the hearing examiner provisions of the APA 
became effective) involved a relatively small number of cases and J 3 
examiners. '^^ With the enactment of the disability program in 1956, SSA 
adjudication grew dramatically. In 1972 Congress enacted the supplemental 
income program, engendering another huge increase in adjudication. 
Throughout the 1970s and 1980s, the SSA has been struggling with the 



175 



5^^ Chapter n(B). 



826 Verkuil, Gifford, Koch, Pierce, and Lubbers 



difficulties of administering an adjudicatory caseload running to hundreds of 
thousands of cases per year: in fiscal year 1973 the SSA's hearing office 
operated with 420 AUs who disposed of 68,356 cases (with 36,780 
pending). '^^ By 1989 that office operated with 694 AUs and disposed of 
302,076 cases (with 159,268 pending).'^ 

SSA's administration is organized as follows: initial claims are evaluated 
by state agencies. If a claimant is turned down by the state agency (on initial 
application and on reconsideration), the claimant is entitled to a hearing before 
a federal AU. The AU's decision is subject to review by the Appeals 
Council, a reviewing body composed of 20 members sitting individually or in 
panels of 2 or 3.'^ Subsequent review lies in the federal district courts. 

Not only is the SSA adjudicatory system in fact completely different from 
the operation of the regulatory agencies upon which the Attorney General's 
Committee focused its attention; the sheer volume of the claims adjudicated 
make it readily apparent that the regulatory model could never possibly be 
applied to dispose of the SSA adjudicatory caseload. Moreover, the SSA could 
not even begin to control policy by relying solely upon the Appeals Council. 
The Appeals Council itself handles tens of thousands of cases per year: in 
fiscal year 1973, the Appeal Council handled 17,773 cases and by fiscal year 
1989, the Council was reviewing 54,895 cases. '^ It has probably already 
extended itself to the limit in exercising basic review; effective policy control 
over the volume of cases coming before it is probably beyond its abilities. 
Moreover, attempts to exercise such control are likely to be impeded by the 
fact that the Council operates in a large number of panels and thus faces 
internal coordination problems. 



•''^SA, Office of Hearings and Appeals, Key Workload Indicators 1 (3d quarter, FY 1991). 

'^Besides its 20 members, the Appeals Council is chaired by the Associate Commissioner 
for Hearings and Appeals. Another member manages the operations of the Appeals Council 
under the title of Deputy Chair. The review process involves an initial assessment by analysts 
from the Office of Appeals Operations. If the analyst recommends denying review, only one 
member of the Appeals Council will be assigned to the case. If the member concurs with the 
analyst, then review will be denied. If the member disagrees with the analyst or if the analyst 
recommends review and the member agrees, the case is reviewed by two members. If the two 
members agree, their decision is final. If they disagree, the Deputy Chair of the Appeals Council 
or a designee resolves the matter. Koch, & Koplow, The Fourth Bile at the Apple: A Study of the 
Operation and Utility of the Social Security Administration's Appeals Council, 1987 ACUS 625, 
reprinted in 17 Vla. State U. L. Rev. 199, 236, 253-255 (1990). 

'"^SSA, Office of Hearings and Appeals, Key Workload Indicators 1 1 (3d quarter, FY 1991). 



The Federal Administrative Judiciary 827 



3. The Regulatory Model Has Diminished with Deregulation 

The regulatory model that underlay the approach of the Attorney General's 
Committee and the APA towards independent hearing examiners was employed 
in the agencies regulating transportation economics: the Interstate Commerce 
Commission (rail and motor carriage) and the Civil Aeronautics Board (CAB) 
(air transport). Since the late 1970s, rate regulation in most transportation has 
been effectively ended. As a result, the CAB no longer exists and the ICC 
retains only a small portion of the work it once handled. 

4. Rulemaking as a Principal Regulatory Technique and the 
Problems Afflicting It 

When it created the Federal Trade Commission in 1914, Congress 
contemplated the FTC would proceed through case-by -case adjudication to 
provide content to the open-ended prohibition against "unfair methods of 
competition," and, in fact, it did so for many years. In 1964, however, the 
FTC issued its first trade regulation rule. Thereafter, the FTC followed up 
with numerous trade regulation rules. By 1973, the FTC's power to regulate 
through rulemaking was confirmed in the courts.'*^ Subsequently, Congress 
explicitly conferred rulemaking power on the FTC.'*' Other, newer regulatory 
statutes—enacted since the mid 1960s— such as the Consumer Product Safety 
Act,'^ the Occupational Safety and Health Act,'*^ the Federal Coal Mine 
Health and Safety Act,'«^ the National Traffic and Motor Vehicle Safety Act,'" 
and the Clean Air Act Amendments'*^— contemplate that regulation will take 
place primarily through rulemaking. 

The trend towards increased substitution of rulemaking for adjudication, 
however, has encountered some severe barriers. Amendments to the Federal 



'^"National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672 (DC. 1973), cert, denied, 415 
U.S. 951 (1974). 

'^'Federal Trade Commission Improvement Act of 1975, Pub. L. No. 93-637, 88 Sut. 2193 
(1975) (codified as amended at 15 U.S.C. §57a (1988)). 

'^Pub. L. No. 92-573, 86 Stat. 1207 (1972) (codified in relevant part at 15 U.S.C. §§2058, 
2060 (1988)). 

'"Pub. L. No. 91-596, 84 Sut. 1590 (1970) (codified in relevant part at 29 U.S.C. §655 
(1988)). 

'"Pub. L. No. 91-173, 83 stat. 742 (1969) (codified in relevant part at 30 U.S.C. §811 
(1988)). 

'*^Pub. L. No. 89-563, 80 Stat. 718 (1966) (codified in relevant part at 15 U.S.C. §1392 
(1988)). 

'*<T>ub. L. No. 91-604 §104 (1970) and Pub. L. No. 95-95 §104 (1977) (codified at 42 
U.S.C. §7409 (1988)). 



828 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Trade Commission Act ostensibly designed to confirm the FTC's rulemaking 
power have inhibited it by imposing unrealistic procedural requirements on 
that agency. In rulemaking in which "disputed issues of material fact" arise, 
the FTC may be required to provide opportunity for extensive cross- 
examination.'^ Indeed, the lack of clarity of the FTC's procedural obligations 
exerts overwhelming pressure on it to employ a full judicial trial, because it 
has no way of predicting how a reviewing court will later construe those 
obligations. As a result, the advantages of notice-and-comment rulemaking 
have been negated to a significant degree. Moreover, increasing demands 
from reviewing courts for reasoned responses from agencies to issues raised in 
rulemaking proceedings have proved devastating to the rulemaking process. In 
complex proceedings, courts, urged on by counsel for those objecting to a 
rule, are with increasing frequency able to fmd some issue to which the agency 
has inadequately responded. Critics, therefore, assert that the rulemaking 
process itself is in jeopardy unless the courts take a more tolerant approach to 
review of rulemaking.'^ 

Finally, it should be observed that adjudications involving economic 
regulatory matters, such as those litigated before the Federal Energy 
Regulatory Commission, often involve matters of substantial economic 
consequence. To the extent that procedural barriers erected by the federal 
courts continue to impede the move towards rulemaking, the importance of 
adjudication—measured by the economic value of its subject matter—is likely to 
increase. 

5. The Share of ALJs Deciding Regulatory Adjudications 
Has Diminished 

As of May 1992, there were approximately 1,185 ALJs, of which 866-or 
73%-worked for the Social Security Administration.'*^ In 1979 there were 
approximately 1,071 ALJs, of which 660~or 62%-worked for the SSA.'** 
According to a report issued by the Civil Service Commission, in the period 
1972-73, there were approximately 800 ALJs, of which 440-or 55%-worked 



'^■'IS U.S.C. §57a (1988). 

'^E.g., Pierce, The Unintended Effects of Judicial Review of Agency Rules: How Federal 
Courts Have Contributed to the Electricity Crisis of the 1990s, 43 Admin. L. Rev. 7 (1991); 
Pierce, Two Problems in Administrative Law: Political Polarity on the District of Columbia 
Circuit and Judicial Deterrence of Agency Rulemaking, 1988 DUKE L. J. 300. 

'*\l.S. Office of Personnel Management (typewritten report, undated). The SSA, Key 
Workload Indicators 1 (FY 1991), however, shows only 777 AUs on duty at the SSA for June 
1991. 

^^See Lubbers, Federal Agency Adjudications: Trying to See the Forest and the Trees, 31 
Fed. B. News & J. 383, 384 (1984). 



The Federal Administrative Judiciary 829 



for the Social Security Administration. •'' In 1962 there were 505 AUs, of 
which 164~or 32%-worked for the SSA."^ In 1947, the total number of 
AUs was 196, of which 13~or only 7%-worked for the SSAJ'^ By 1981, 
Jeffrey Lubbers was able to point out that the profile of AU work had 
drastically changed. Lubbers showed that while the 125 ALJs working for the 
economic regulatory agencies in 1947 constituted approximately 64% of the 
AUs at that time, by 1981 the number of AUs working for economic 
regulatory agencies had declined both absolutely and proportionately: in 1981, 
109 AUs worked for economic regulatory agencies and they constituted only 
9.7% of the then total of 1,119 AUs.'** In a more recent article,"^ 
Administrative Law Judge John C. Holmes showed that by 1987, the AUs 
working for economic regulatory agencies had declined even further, to 67~or 
6.8%~of the 980 AUs who held office in 1987. As of May 1992, it appears 
that only 55 out of 1,185 AUs work for economic regulatory agencies, 
reducing their percentage to approximately 5% of the total. '^ 

These figures show a dramatic shift in the work of AUs since the APA was 
enacted. SSA adjudications, which originally had accounted for the work of 
only a small fraction of the AUs now account for the work of almost three- 
quarters of them. Economic regulatory adjudication, which accounted for the 
work of almost two-thirds of the AUs in 1947, accounts for the work of only 
5 % of the present AUs. 

6. Benefit Adjudications Predominate 

According to the Secretary of Veterans Affairs, in 1990 the Board of 
Veterans Appeals produced 46,556 appellate decisions, but of that number 
only 1,684 involved formal hearings before the Board and 12,451 involved 
appealed cases in which hearings were held in the field before regional office 
personnel acting on behalf of the board. "^ The Board itself is composed of 65 
members that sit in 3 -member sections composed of 2 legal and 1 medical 



^^^See U.S. Civil Service Commission, Report of the Committee on the Study of the 
Utilization of Administrative law Judges, App., p. 3 (July 30, 1974). 

''^W.R. Lester, Section 11 Hearing Examiners, Report of the Committee on Personnel, 
ACUS 25 (Aug. 23, 1962) 

"^Holmes, AU Update, A review of the Current Role, Status, and Demographics of the 
Corps of Administrative Law Judges, 38 FED.B.N.& J. 202 (1991). 

"^Lubbers, A Unified Corps of AUs: A Proposal to Test the Idea at the Federal Level, 65 
Judicature 266, 268 (1981). 

'^^Holmes, supra note 193. 

^^See OPM, Total Number of AUs on Board by Grade and Agency as of June 25, 1991 . 



197 



Secretary of Veterans Affairs, Annual Report 46-47 (FY 1990). 



830 Verkuil, Gifford, Koch, Perce, and Lubbers 



members.'* In a recent report to the Conference, Administrative Judge John 
Frye estimated that the caseload of non-AU federal adjudicators is about 
343,200 cases per year. Decisions of the Board of Veterans Appeals appear to 
constitute about 17% of that total.''' 



H. The Historical Background to the Selection Process and to 
the Present Protections for Independence 

Since 1937, when the President's Committee on Administrative 
Management recommended that adjudicators be separated from investigative 
and prosecutorial functions in the agencies, the degree and extent to which 
agency adjudicating officers should be separated from their employing agency 
has been a subject of almost continual study and dispute. As pointed out 
below, the Attorney General's Committee went beyond the recommendations 
of the President's Committee by recommending steps designed to provide 
hearing examiners sufficient protection from agency influence to encourage 
and facilitate the exercise of independent judgment in finding facts from 
evidence in the record of an adjudication. The Committee's recommendations 
about the profile of examiner job characteristics, however, were shaped by its 
view of the examiner's work. 

The Attorney General's Committee believed that hearing examiners 
normally do most of their work for a particular agency and that the 
accompanying specialization was desirable for efficiency reasons: 

Efficient conduct of the work demands that hearing officers 
specialize in the work of ipecific agencies. Some exchange, 
as we point out, is desirable and will occur. But in the main 
the work of a hearing commissioner will be with a particular 
agency. Specialization is one of the fundamentals of the 
administrative process.^ 

This specialization probably was the reason the Committee rejected the 
concept of a separate corps of hearing examiners not attached to specific 
agencies.^' Despite its belief in the benefits of specialization, the Committee 



'^Membership on the Board of Veterans Appeals is limited to 65 under 38 U.S.C. §4001(a) 
(1988). Judge John H. Frye's Study of non-AU Hearing Programs indicates that the Board is at 
full authorized strength. J.H. Frye, III, Survey of non-ALJ Hearing Programs in the Federal 
Government, App.B, 1-2 (ACUS Aug. 1991). 

'^rye Report at 4. 

^"^inal Report 47. 



The Federal Administrative Judiciary 83 1 



nonetheless contemplated that hearing examiners could be loaned or exchanged 
among agencies where the work was not too dissimilar. The principal reason 
given by the Committee for such exchanges was efficiency: decisional 
resources would be better employed when an agency unable to support a full- 
time hearing examiner could borrow one from another agency. A secondary 
reason given by the Committee was the variety and fresh point of view the 
practice would provide to examiners. ^"^ 

Although the Committee believed that salaries should be substantial, it may 
have been addressing what it believed to be the normal case of agencies 
handling relatively small numbers of complex cases, because the Committee 
left open the possibility that "agencies which deal with many small cases" 
might be authorized to pay at a somewhat lower scale. ^-^ 

The Committee rejected the suggestion that hearing examiners hold office 
under Presidential appointment. This rejection seems to have been grounded 
on the Committee's belief that "the agencies themselves should have an 
important share of the responsibility of selecting the persons who shall be 
hearing commissioners."^ The Committee contemplated that hearing 
examiners would be nominated by the agency for whom they would work and 
then be appointed by a proposed new independent Office of Federal 
Administrative Procedure. ^^ 

The Committee further recommended that hearing examiners be appointed 
for a term of 7 years at a fixed salary and that during that term they can be 
removed only for cause. ^ Appointment in the manner described together with 
such tenure would, the Committee believed, provide examiners with conditions 
conducive to the exercise of independent judgment. The Committee majority 
selected the period of 7 years as adequate to promote independence on the 
ground that the judges of many state supreme courts hold office for a similar 
term.^^ Conversely, in recommending apf>ointment for a term of years, the 
Committee was rejecting indefinite appointments because it wanted to avoid 
"making impossible the displacement of those who fail to measure up to the 
standards required of them. "^ 



^'^Final Report 49. A loan program, such as the one contemplated by the Committee, is 
administered by OPM under 5 U.S.C. §3344 (1988). 

^^Final Report 46. 

^Final Report 47. 

^^Final Report 47. See also id. 196 (proposed bill §302(3)). 

^°^Final Report 46, 196. The Committee Minority recommended that hearing examiners hold 
office for a term of 12 years. Final Report 238. 

^''Final Report 48. 

^Final Report 47-48. 



832 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The Committee also recommended two additional types of appointments: 
provisional appointments for no more than 1 year and temporary 
appointments.'^^ The Committee wanted the option of 1-year provisional 
appointments to test the actual abilities of possible regular appointees where 
desirable. The Committee recommended that temporary appointments be made 
for situations in which caseloads expanded unexpectedly; for agencies afflicted 
with one or two unusually protracted adjudications; and for agencies with an 
insufficient number of adjudications to warrant the appointment of even a 
single full-time hearing examiner. Both provisional and temporary 
appointments should, the Committee recommended, be made in the manner 
recommended for regular appointments: agency nomination followed by 
approval and appointment by the independent body. 

1. The APA on the Selection of Hearuig Examiners 

In the APA, Congress followed the basic approach of the Attorney 
General's Committee majority in making examiners employees of the 
particular agencies over whose cases they presided, as well as in subjecting 
their selection to oversight and supervision by an independent body. In place 
of the Committee's proposed Office of Federal Administrative Procedure, the 
Congress vested that oversight and supervision in the Civil Service 
Commission.'^ Section 11 of the APA provided that as many examiners as 
necessary should be appointed by and for each agency, and vested rulemaking 
power in the Civil Service Commission. Acting under that power, the 
Commission established methods of appointment, which are discussed later. 

Section 11 followed the Attorney General's Committee recommendations in 
providing (1) that hearing examiners should be removable only for cause 
established and determined by a body independent of the agency for which 
they worked and (2) that examiners' compensation should be determined 
independently from agency influence. Contrary to the Attorney General's 
Committee, which had recommended that examiners hold office for a term of 
years, the APA effectively accorded permanent tenure to examiners. Under 
section 11, the Civil Service Commission would determine the existence of 
cause for discharging examiners and would prescribe examiner compensation 
"independently of agency recommendations or ratings." 

The Act provided that examiners were to be "assigned to cases in rotation 
so far as practicable." The Act also provided that agencies occasionally or 



*^¥inai Report 48-49. 

'^*rhe functions of the Civil Service Commission overseeing hearing examiner independence 
have since been vested in the Office of Personnel Management and the Merit Systems Prxjlection 
Board. 



The Federal Administrative Judiciary 833 



temporarily insufficiently staffed could use examiners selected by the 
Commission from and with the consent of other agencies. Although the AG 
Conmiittee contemplated that examiners might be temporarily assigned to other 
agencies to cover unusual or unanticipated needs, the assignment rotation 
provision did not appear in the Attorney General's Report. In the Attorney 
General's Report, the majority had recommended entrusting a chief hearing 
examiner in each agency with the duty of assigning cases. 2" The minority 
would have permitted the agency to delegate the assignment function as it saw 
fit.2'2 

The rotation provision is not unrelated to the matter of selective 
certification, a matter discussed below. Whereas the issue about selective 
certification involves the interchangeability of ALJs between agencies, the 
rotation provision involves the interchangeability of ALJs within each agency. 
As noted, the Attorney General's Committee had rejected the concept of an 
independent corps of hearing examiners because it believed that such a concept 
conflicted with the need to specialize. At the time Congress was considering 
the APA, it followed the Attorney General's Committee in explicitly rejecting 
the concept of a separate corps of hearing examiners. ^'^ 

The rotation provision contemplates that within a given agency, examiners 
in the rotation pool are interchangeable. The command that examiners be 
assigned on rotation, however, is qualified by the phrase "as far as 
practicable." On the authority of this qualifying phrase, the Civil Service 
Commission promulgated rules establishing several categories of cases, 
according to their level of difficulty, and provided that examiners would be 
rotated only within the categories to which they were deemed qualified to 
decide. Those rules were upheld as consistent with the APA by the Supreme 
Court in 1953, in Ramspeck v. Federal Trial Examiners Conference. '^^'* 

2. The Initial Appointment "Fiasco" 

Numerous problems attended the selection of the first set of hearing 
examiners under the APA. These problems arose because examiners were 
already in place in most agencies, who, of course, generally wished to remain 
under the new regime. The Report of the Attorney General's Committee 
implied that if the Committee's recommendations were followed, the quality of 



21 'Final Report 199 (Proposed bill §305(2)(a)). 

^'^Final Report 239 (Minority proposed code §309(c)(6)). 

^'^Report of the Senate Committee on the Judiciary, S.Rep. No. 758, 79th Cong., 1st Sess 
(1945), reprinted in Legislative History of the Administrative Procedure Act, S. Doc. No. 248, 
79th Cong., 2d Sess. 185, 215 (1946). 

2"*345 U.S. 128, 139-40 (1953). 



834 Verkuil, Gifford, Koch, Pierce, and Lubbers 



hearing examiners (considered in the aggregate) would improve. Congress, in 
enacting the APA, similarly expected that revamping the position of hearing 
examiner to provide more status and independence would result in replacing 
less qualified hearing examiners with more qualified ones. The problem was 
how to achieve the objective of improving overall quality while respecting the 
legitimate expectations of the existing examiners that they would be 
reappointed if they met proper standards. 

Professor Ralph Fuchs, in a now-famous article in the Harvard Law 
Review,2i5 characterized as a "fiasco" the process by which the initial group of 
APA hearing examiners was selected. In the view of the Attorney General's 
Committee and the Congress that had enacted the APA, it was desirable to 
ensure that hearing examiners possessed superior qualifications. By a series of 
misjudgments, the Commission established an examining process that appeared 
to operate in a politically biased fashion against the existing examiners and that 
disqualified 28 % of the existing examiners and more than 35 % of the National 
Labor Relations Board (NLRB) examiners. ^'^ The existing examiners 
challenged the results in administrative appeals to the Commission and they 
made political appeals to Congress. The Commission ultimately backed down 
almost completely, confirming in APA-tenured positions almost all of the pre- 
APA examiners. 2'"' Thus, the end result was that by confirming in office 
almost all of the pre-APA examiners, the Commission effectively defeated the 
expectation that the APA selection process would provide a body of examiners 
of a quality superior to that of the pre-APA period. ^'^ 

The mistakes made by the Conmiission in this process were identified by 
Fuchs as follows. The Commission made inappropriate appointments to the 
examining board. Its membership included individuals who had publicly 
expressed hostility to the preexisting examiners as a group, suggesting that 
substantial numbers of examiners were biased or incompetent. This hostility 
apparently derived from the belief that many examiners had, in the past, 
skewed their factfinding for policy reasons. In these circumstances, the 
examining board became vulnerable to the suspicion that it was allowing its 
own preconceptions to skew its decisions against incumbent examiners. 



^'^Fuchs, The Hearing Examiner Fiasco under the Administrative Procedure Act, 63 Harv. 
L. Rev. 738 (1950). See also President's Conference on Administrative Procedure, Report of the 
Committee on Hearing Officers, Appointment and Status of Federal Hearing Officers 17-20 
(1954); Thomas, The Selection of Federal Hearing Examiners: Pressure Groups and the 
Administrative Process, 59 YaleL. J. 431 (1950). 

^^^See Fuchs, 63 Harv. L. Rev. at 753-54. 

2'''Fuchs, 63 Harv. L. Rev. at 755-59. 

^^^See Fuchs, supra, 63 Harv. L. Rev. at 764; Scalia, The AU Fiasco-A Reprise, 47 U. 
Cm. L. Rev. 57, 58 (1979). 



The Federal Administrative Judiciary 835 



Under the examining system established by the board, incumbent 
examiners with civil service tenure were entitled to appointment as APA 
examiners upon their demonstration of adequate qualifications; competitive 
examination was not required. Among the data before the examining board 
were the written applications that provided information as to the incumbent 
examiners' experience and other qualifications. The examining board, in 
addition, conducted oral interviews. The examining board, however, 
disqualified from this noncompetitive procedure any preexisting examiner who 
had held an administrative position, such as that of chief or assistant chief 
hearing examiner, even though the duties of those persons may have included 
adjudication of cases. This action appeared consistent with the expressed 
hostility of some of the examining board members towards the body of 
preexisting examiners. Moreover, when the results of the examinations 
disqualified a large proportion of the preexisting examiners for appointment as 
APA examiners, the suspicion that the examining board was indeed biased 
against the preexisting examiners appeared to be confirmed. Both the 
examining board and the Commission, therefore, were on weak ground when 
the results were challenged administratively and in Congress. 

Fuchs also suggested that the examination results were vulnerable because 
the examining board was rating individuals on imprecisely defined criteria, 
which therefore gave the examining board wide discretion in performing its 
evaluation function. Although substantial room for judgment and discretion is 
undoubtedly necessary when rating individuals on personal characteristics, the 
wide scope of the examining board's discretion exacerbated the board's 
vulnerability to charges that it was skewing the results of its examinations in 
accordance with its own preconceptions. Fuchs suggested that: 

[I]t might have been desirable to designate more precisely 
certain qualities for which the applicants were to be rated, 
and then to co-ordinate the results with reference to these. 
Such qualities as knowledge of administrative procedure, 
ability to handle technical questions during hearings, 
personal bearing, and objectivity might have been selected 
for this purpose and have aided somewhat in the difficult task 
of arriving at comparative judgments summarizing a host of 
intangible factors. Stenographic notes, or a recording, of 
each oral interview with at least the status incumbents should 
have been made, so as to be available in case of an appeal.'''^ 



''*^63 Harv. L. Rev. at 752. Thomas similarly criticized the broad charge given to the board 
of examiners to determine "qualified and competent" examiners. Thomas, supra note 215, 59 
Yale L.J. at 459. 



836 Verkuil, Gifford, Koch, Pierce, and Lubbers 



3. Organization, Appointments, and Evaluations of ALJs: 
Past Studies, Reports, and Recommendations 

a. The 1954 Report of the President's Conference on Administrative 
Procedure 

A report prepared by a committee chaired by Earl Kintner and whose 
membership included Richard Doyle, Edwin Reynolds and L. Paul Winings 
reviewed the status of federal hearing officers in 1954 and made 
recommendations. The Report of the President's Conference concluded that 
the Civil Service Commission had abdicated its responsibilities under section 
11 of the APA.220 The Report faulted the CSC for the fiasco involving the 
initial appointments described in the Fuchs article.^' It faulted the CSC for 
failing, after the preparation of a register of eligible appointees in 1949, to 
prepare another register. ^^ It faulted the CSC for failing to take steps to raise 
the standards for examiners.^ TTie Report suggested that the CSC was 
effectively incapable of evaluating professionals,^^ and observed with dismay 
that the CSC had been unable to evaluate examiners for promotion within 
timeframes the Committee believed to be reasonable.^ Moreover, the 
Committee suggested that the CSC had employed improper and sometimes 
perverse criteria for evaluating examiners.^ Finally, the CSC had effectively 
allowed a circumstance to develop in which the agencies could, if they so 
wished, control the compensation of examiners, contrary to the intent of the 
APA.227 



^^'^Presidenl's Conference on Administrative Procedure, Report of the Committee on Hearing 
Officers 51 (1954), hereinafter referred to as "President's Conf. Report". 

^^President's Conf. Report 17-20, 47-48. 

^^President's Conf. Report 47, 60. 

^President's Conf. Report 49-50. 

^President's Conf. Report 58, 75. 

^President's Conf. Report 51-52, 75. 

22^e Conunitlee was disturbed by the fact that the CSC had apparently sought out 
comments on examiner performance from private attorneys who had practiced before them. The 
Committee took the view that this practice subjected the examiners to pressures from persons 
whose cases they were required to judge, thereby threatening their ability to decide impartially. 
President's Conf. Report 74-75. The Committee was also displeased by the CSC's apparent use 
of the length of the case records to assess the difficulty of the work handled by examiners. The 
Committee saw the use of such a criterion as creating an incentive for examiners to expand 
hearings unduly. Id., at 53-54, 75. 

^^Under the CSC's interpretation of the APA, an agency could effectively control the 
compensation of its examiners by the way it assigned cases. Under the APA, cases are required 
to be assigned in rotation 'so far as practicable." This meant, in the CSC's view, that when an 



The Federal Administrative Judiciary 837 



Because the Committee had concluded that the CSC had been so deficient 
in performing its responsibilities under the APA, the Committee recommended 
that the supervision over examiners be removed from the CSC and placed in a 
new Office of Administrative Procedure.^ The Committee criticized the 
system of appointments that purported to constrain agency discretion in 
appointing examiners to the top three on the register, but that, in fact, 
permitted agencies to escape the full effects of this constraint.^ The 
Committee's approach, however, was not to recommend tightening the 
constraints on the agencies, but to loosen them. The Committee explicitly 
rejected the so-called rule of three approach under which an agency was 
required to choose an ALJ from among the top three ranked candidates of the 
register,^^ and suggested that numerical scores involving imponderables, such 
as a candidate's ability to be impartial, were "patently fallacious."^' The 
Committee then recommended that the new Office of Administrative Procedure 
have wide discretion over setting the qualifications for examiners and that, 
after the Office of Administrative Procedure determined the minimum 
qualifications, the agencies be free to select from the entire list of qualified 
candidates. ^2 Although the Committee took the view that imposing a 
requirement of specialized knowledge on candidates for examiner would 
unduly limit the field of eligibles,^^ its recommendation that agencies be free 



agency assigned cases of different degrees of difficulty to different examiners, the CSC would be 
obliged to classify the different exanuner categories accordingly: "According to the Civil Service 
Commission, if an agency assigns Grade 12 work to a Grade 14 hearing officer, the Commission 
would be compelled to down-grade the hearing officer to GS-12." President's Conf. Report 76. 
See also id. , at 5 1 . 

^President's Conf. Report 59. 

^^An agency thus could fill a vacancy with an examiner from another agency; the agency 
could appoint a nonexaminer with civil service status; the agency could appoint former employees 
of the legislative or judicial branches eligible under the Ramspeck Act (who would be required to 
pass a noncompetitive examination); or the agency could request selective certification. If the 
agency appointed a status nonexaminer, that person would then be required to meet the grade 
standing of the third person on the register. The appointee, however, would possess the 
advantage of having his recent experience counted toward his grade while the register candidate's 
recognized experience was frozen as of the date of the register. In 1954 the register was 5 years 
old. President's Conf. Report 31-32, 47. 

^President's Conf. Report 64. 

^'President's Conf. Report 70. 

^^President's Conf. Report 64. This approach (of full register selection) had been previously 
advocated in Thomas, The Selection of Federal Hearing Examiners: Pressure Groups and the 
Administrative Process, 59 Yale L. J. 431, 475 (1950). 

^^President's Conf. Report 69. 



838 Verkuil, Gifford, Koch, Pierce, and Lubbers 



to appoint any person on the qualified list effectively ensured that agencies 
wishing to appoint persons with specialized knowledge would be free to do so. 
The Committee thought that multiple grades of examiners within any single 
agency was inadvisable. Multiple grades focused examiners' attention on the 
process of promotion and the CSC had proved incapable of adequately 
evaluating professionals for promotion.^ Moreover, the time and effort 
expended in the evaluation process and the handling of appeals from those 
rejected made the promotion process inordinately time consuming and 
expensive. ^^ The Committee rejected the concept of probationary 
appointments as a threat to the decisional independence of the probationary 
examiners.^ Although the Committee acknowledged that the work of 
examiners differs from agency to agency, it suggested that the existence of 
different grades of examiners between agencies would engender pressures on 
the successor organization to the CSC to eliminate the differences. 
Accordingly, the Conmiittee suggested that a single grade of examiner 
probably ultimately would prevail throughout the federal system. ^^ 

b. The 1962 Conference Study 

Professor Wilbur R. Lester wrote a report to the temporary Administrative 
Conference in 1962 on "Section 11 Hearing Examiners."^ Like the AG 
Committee and the APA itself, Lester rejected the concept of a common pool 
of examiners who are assigned to an agency on a case-by-case basis. ^^ Lester 
noted that "hearing examiners among the agencies do not form a homogeneous 
group, "^ and pointed out differences in the tasks of examiners from different 
agencies. 

Despite the heterogeneity of ALJ work from agency to agency, Lester 
favored raising the compensation of HEW examiners—which were then at the 
GS-13 level (except for 11 GS-11 examiners in the Bureau of Indian Affairs 
(BIA))~to equal that of examiners for regulatory agencies. In support of that 
view, he argued that the difficulties in some aspects of the work of a 
regulatory examiner over those incurred by a HEW examiner were cancelled 



^^President's Conf. Report 76. 
^^President's Conf. Report 52, 75. 
^^President's Conf. Report 78. 
^^President's Conf. Report 77. 

^^W.R. Lester, Section 11 Hearing Examiners, Report of the Staff Director, ACUS 
Committee on Personnel (1962) (hereafter cited as "Lester"), 
^^ster, 86-87. 
2^^sler, 3. 



The Federal Administrative Judiciary 839 



out by the ease of performing other aspects.^' He refrained from actually 
embodying his views in a recommendation, however, because he believed that 
such a recommendation would not be politically acceptable. ^^ 

Lester reported with disapproval the prior existence of several grade levels 
within many agencies from 1947 to 1953, the ICC having maintained a five- 
grade range until 1953 and the CAB having a four-grade range that year.^^ 
Since January 1961, however, he reported that multiple grades within single 
agencies had been eliminated, although there still remained four grade levels of 
hearing examiners, differentiating the examiners among agencies.^ Lester's 
latest data showed that almost all hearing examiners were then at GS-13 or GS- 
15, the exceptions being the 11 hearing examiners in the Bureau of Indian 
Affairs at GS-12, and 13 hearing examiners in the Coast Guard and 1 in the 
Office of the Alien Property Custodian at GS-14.^^ Lester asserted that 
multiple grades within an agency had been the source of unnecessary anxiety 
on the part of examiners desiring promotion and the cause of unnecessary 
inefficiency in causing resources to be spent on evaluating examiners for 
promotion. 2^ He recommended that there be but one class of examiner in each 
agency^^ and generally that there be a single class throughout the government 
since, as he put it, "a hearing examiner is, after all, a hearing examiner."^ 

Although Lester believed that all hearing examiners should be at the same 
level, he acknowledged a productivity problem. His recommended solution 
was supervision by chief hearing examiners in cooperation with an outside 
Office of Administrative Procedure or Office of Professional Personnel. ^^ In 
this way Lester hoped to bring to bear on the supervision of the AUs the 
talents of those (other than the agency) who were most familiar with their 
work. 

Lester recommended creating a new outside supervisory office because the 
CSC had, in his view, demonstrated that it was incapable of evaluating and 
supervising hearing examiners.^ Moreover, Lester pointed out that the CSC 
had never hired or promoted lawyers or other professionals. That task had 
been turned over to the employing agencies, except for hearing examiners. 

2^' Lester, 67-68. 

^^^Lester, 69-70. 

^^Lester, 25. 

2^Lester, 25. 

^^^Lesler, 25. 

2^^sler, 26. 

^^Lesler, 29, 60. 

^^Lester, 26, 29. 

^^ster, 27, 32 50. See id., 47 (new office discussed). 

2^^ster, 28. 



840 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Therefore, Lester argued that a new office be established whose function was 
overseeing professional federal employment.^' In so recommending, he was 
following the lead of two earlier reports: the Kintner-Doyle-Reynolds- 
Winings Report of 1954 and the Hoover Commission Report on Legal Services 
and Procedure.^' 

Lester opposed the practice of selective certification, urging that it be 
eliminated or deemphasized, on the ground that general capabilities and 
intelligence were more important than skill in the law and policies of a 
particular agency; and that a capable appointee could learn the law and policy 
in his first year or so with the agency and draw upon it thereafter. ^^ Lester 
also believed that selective certification produced undesirable inbreeding.^ 

Lester reported a vast growth m selective certification in the years 
preceding his report. In 1954, the CSC had granted selective certification to 
only the Coast Guard, the FCC and the Federal Power Commission (FPC). 
Since that date, selective certification had been granted to the ICC, the NLRB, 
the CAB, the Securities and Exchange Commission (SEC), the Federal 
Maritime Commission (FMC), the Department of Agnculture and the Bureau 
of Land Management in the Department of the Interior. ^^ Indeed, Lester 
reported that over the 7-year period, there were a total of 355 appointments to 
the position of hearing examiner. Of that total, 158 were appointed pursuant to 
selective certification. Of the 197 appointments not pursuant to selective 
certification, 186 were to one Department: HEW. 

Lester believed that the appointments process could be improved by using 
an unranked register and abolishing the Veterans preference and the rule of 
three. ^^ Indeed, he claimed that agencies used selective certification to avoid 
making the poor appointments which the rule of three would otherwise force 
upon them.^^ Lester suggested that if the entire register is not made available 
to the agency, then that at least the top 10 or 20 names be provided to the 
agency. He cautioned that the outside office (to replace the CSC) should 
exercise supervision to ensure that the agency does not use its greater freedom 
of appointment to reinstate selective certification.^ Lester recommended a 
practice of probationary appointment of examiners for a period of 1 or 2 years 
before appointments were made permanent as a way to improve the quality of 



^'Uslcr, 47-49. 
^^Usler, 49. 
25^Lester, 79. 
^Usler, 27. 
^^Lesier, 43. 
^^^sler, 30. 
^^Lesler, 43. 
^Lester, 80. 



The Federal Administrative Judiciary 84 1 



appointments.^' The Director of his proposed Office of Professional 
Personnel would have final authority in determining whether a probationary 
examiner would receive a permanent appointment. 

Lester believed examiners should not work in total isolation and that 
exchanges of views and information among examiners were healthy and 
productive.^ He believed agency policies that were not embodied in rules 
could be communicated to examiners by consultations between the chief 
hearing examiners and the agency (although not with the prosecuting or 
investigative parts of the agency).^' 

c. The 1969 Conference Study and Recommendation 

In 1969 the (permanent) Administrative Conference adopted 
Recommendation 69-9, calling for an experimental departure from the system 
of selective certification; for employment of an experimental intern program 
for AU appointments; and for elimination of the veterans preference in the 
appointment of examiners. ^^ 

The underlying study suggested that the requirement to select a candidate 
from among the top three on the register combined with the mechanics of 
Veterans preference (which adds 5 to 10 points to a score) critically distorted 
the supposedly merit-based system of appointment.^^ Accordingly, the study 
recommended that agencies be permitted to appoint an examiner from the top 
10 persons on the register and that the Veterans preference be eliminated. The 
study also endorsed the ABA's suggestion that trial experience be substituted 
for administrative law experience as a general qualification demanded of AU 
candidates. 

The study approached selective certification cautiously. It suggested the 
possibility that selective certification was being overused, and accordingly 
recommended that a body outside CSC such as a Conference Committee help 
them determine the importance of specialized experience for each agency 
seeking to use or retain selective certification. In cases in which the agency 
made a case for a less than critical need for specialized experience, the study 
recommended that extra points be awarded for such experience on the general 
register. 



^^sler, 31,50, 80-83. 

^'^'^ster, 90. 

^^'i Lester, 91-92. 

^^1 ACUS 30 (1968-70); 1 CFR §305.69-9 (1991). In addition, the recommendation called 
for continued training for hearing examiners (and other government attorneys) and the creation of 
a center for continuing legal education in government. 

2*^1 ACUS 381 (1968-70). 



842 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The experimental intern proposal was designed to enlarge the pool of 
potential AU appointees. Under the proposal, individuals (lacking some 
qualifications needed for an AU appointment) might be appointed as interns 
for a 2-year period during which they would receive the additional experience 
and training needed to bring them into the pool. 

d. The Scalia Approach 

In a 1979 law review article,'^ then-professor Antonin Scalia argued that 
the prospect of agency-induced bias in hearing examiners was no longer a 
serious problem. Scalia argued, therefore, that those constraints on the 
appointments and employment conditions of hearing examiners that had been 
written into the APA to counter bias could and should be eliminated in the 
interests of improving the quality of hearing examiners. 

Scalia asserted that ensuring the quality of examiners was the paramount 
problem. He argued that the persons most capable of evaluating examiner 
competence are almost necessarily persons inside the agency for whom the 
examiners work. They will be most familiar with the levels of difficulty posed 
by the particular cases before the examiners and only people inside the agency 
will be familiar with the issues essential to evaluating examiner performance. 

Scalia' s point went beyond the assertion that people within the agency will 
have the most familiarity with the types of issues that the examiner is handling 
and accordingly be best able to evaluate the examiner's performance. He also 
asserted that people outside the agency— including the personnel of the Office 
of Personnel Management—are generally unable to assess the performance of 
examiners because they lack the training and experience of judging and, 
therefore, lack the ability to evaluate judging performance. Furthermore, 
people outside the agency will not only be unfamiliar with the issues before the 
agency's examiners, they will be totally ignorant of those issues. The amount 
of time that would have to be invested to perform a credible evaluation— even if 
these external officials were otherwise competent-would vastly exceed any 
amount that could be practically devoted to the task. The result is that 
performance evaluation, according to Scalia, would probably have to be made 
by the agencies for whom the AUs worked. Because Scalia believed in 
performance evaluation, he argued that the agencies themselves could be 
trusted to engage in performance evaluation of AUs, especially if safeguards 
were taken to exclude prosecutory staffs from the evaluation process.'^ 



'^Scalia. The AU Fiasco-A Reprise, 47 U". Cm. L.Rev. 57 (1979). 

'*^47 U. Chi. L. Rev. at 77-79. Scalia acknowledged thai performance evaluation of AUs 
could be readily insulated from improper pressures or influences if it were done by the 
administrator of a unified corps of AUs. Scalia, however, believed that such an administrator 



The Federal Administrative Judiciary 843 



III. The Variety of Administrative Adjudications 
and Administrative Judges 

As was introduced in Chapter I, the scope and variety of decisionmaking 
models and decider qualifications in the administrative setting are numerous 
and often inconsistent. There appears to be no plan for deciding in what kinds 
of cases formal processes and AUs should be used and when informal 
processes and other administrative judges should be used. Indeed, formal 
processes presided over by non-AUs are being established by agency rules. 
Thus, the APA "on the record" hearing requirement that triggers formal 
adjudication and AU presiders is increasingly inadequate to explain procedural 
formality or the qualifications of the deciders. 

It is the purpose of this chapter to review the variety of decisionmaking 
models that implicate similar private interests but are decided with differing 
degrees of procedural and decider formality. Perhaps the most compelling 
comparison between two systems performing virtually identical functions 
involves disability determinations by the Social Security Administration and 
the Veterans Administration.^ The SSA decides large numbers of disability 
cases using AUs. The VA, on the other hand decides its disability cases 
informally and hears decisions before two- or three-person panels of non-ALJ 
deciders. Moreover the SSA decisions are subjected to close oversight by the 
district courts, whereas the VA decisions are reviewed by an Article I Court of 
Veterans Appeals with little federal court oversight. 

The lesson of the SSA - VA experience must be that there are different 
ways to achieve justice in the administrative setting that can be equally 
successful. The remainder of this chapter explores a variety of decision and 
decider models that offer examples of cases with comparable private interests 
but different procedural rules and decider qualifications. The goal is to 
identify some kind of common denominator. The case studies developed here 
will be evaluated in Chapter XII, where standards for utilizing AUs or other 
administrative deciders will be proposed. 



A. NLRB/EEOC Enforcement Adjudication 

The Equal Employment Opportunity Commission (EEOC) handles cases of 
alleged employment discrimination in a number of different ways, depending 

would not be as well informed about the work of the ALJs as would the agencies for whom they 
worked. Id. at 79. 

^ee discussion in Chapter n(E) (3) supra, and in Chapter III(D), infra. 



844 Verkuil, Gifford, Kcx:h, Pierce, and Lubbers 



on the source and kind of discrimination.^^ The Commission enforces Title 
VII of the Civil Rights Act of 1964, the Age Discrimination in Employment 
Act, the Americans with Disabilities Act and the Equal Pay Act. The EEOC 
bears the structural form of a traditional independent agency in that it consists 
of five members, each of whom is appointed by the President and confirmed 
by the Senate to a 5 -year term, and no more than three of its members can be 
members of the same political party. ^ 

In most cases involving alleged discrimination by private employers, 
EEOC action is deferred until the state agency with jurisdiction over the event 
is first given an opportunity to resolve the complaint. -^ If the state agency has 
not acted within the allotted time period, the EEOC conducts an investigation 
to determine whether there is reasonable cause to believe that discrimination 
has occurred. ^''^ If the EEOC determines that reasonable cause exists, ''" then 
the EEOC attempts to eliminate the practice by informal methods of 
conference, conciliation and persuasion.-^ If and when the EEOC determines 
that efforts at voluntary compliance have been unsuccessful, or at any time 
(after 180 days subsequent to the filing of the charge) that a charging party so 
requests, the EEOC will issue a right-to-sue letter, thereby permitting the 
charging party to seek relief in the courts.-^ In addition to a civil suit brought 
by the charging party, the EEOC itself may bring suit against an employer. -'''* 

Where the employer is a federal government agency, the procedure 
governing discriminatory employment practices is somewhat different. 
Indeed, it is with federal government discrimination that the EEOC becomes 
more of a jxjtential adjudicator. Whereas in matters involving private 
employers the EEOC is primarily a conciliator, negotiator and—when 
conciliation and negotiation fail— a litigant, its role vis-a-vis federal agencies 
takes on more of a supervisory role. 

First, all federal agencies are required to have on their staffs officials 
known as Equal Employment Opportunity Counselors and Equal Employment 
Opportunity Directors. ^^^ Individuals believing themselves victims of unlawful 
employment practices are required first to consult with the agency's Equal 



'^'^See also Frye Report at 129-36. 

2^42 U.S.C. §20008-4(a) (1988). 

2^9 CFR §1601.13 (1991). 

2'^9CFR §1601.15 (1991). 

^'''29 CFR §1601.19, §1601.21 (1991). 

2*^9 CFR §1601.24 (1991). 

^■^9 CFR §1601.28 (1991). 

2''*29 CFR §1601.27 (1991). 

2^^9 CFR §1613.204(c) (1991). 



The Federal Administrative Judiciary 845 



Employment Opportunity Counselor. ^^ If the Counselor is unable to resolve a 
matter informally, then the complainant is entitled to file a formal complaint 
with the employing agency.^ The agency's Director of Equal Employment 
Opportunity then orders an investigation by a person outside that part of the 
agency in which the complained of events occurred.^ If an agreement is not 
reached between the complainant and the agency, the complainant is advised of 
his/her right to appeal to the EEOC.^^ The EEOC then assigns an 
administrative judge (AJ), either 1 of the 79 such judges on its own staffs or a 
judge drawn from an agency other than the respondent agency, to hear the 
case.^* The AJ is given the investigative file prepared within the agency (by 
the agency's Equal Employment Opportunity Director), and may decide to 
order further investigation by the agency and/or may hold a hearing himself.^ 
The AJ then makes a recommended decision that (together with the record) is 
transmitted to the agency head for decision. ^^ The agency head's decision is, 
in turn, appealable to the EEOC.^ EEOC review, however, is generally 
performed by its Office of Federal Operations. ^^ 

Thus, the EEOC role vis-a-vis federal agency employers is one that 
oversees a system of employer self-correction. Federal agency employers are 
required to implement a system that will prevent discriminatory behavior from 
arising and to take corrective action when it occurs. When corrective action 
fails to satisfy the complaining employee, the agency employer is still given 
the chance to address and to correct the problem, since the presiding AJ in a 
formal inquiry directs a recommendation to the head of the employing agency. 
Only after the agency head has had an opportunity to accept the AJ's 
recommendations is there an opportunity to appeal to the EEOC. 

It is interesting to compare the EEOC procedure involving alleged 
discrimination in federal employment with the NLRB procedure involving 
alleged unfair labor practices under the National Labor Relations Act. The 



2^*29 CFR §1613.213 (1991). 

2^29 CFR §1613.214(1991). 

^9 CFR §1613.216 (1991). 

2^9 CFR §1613.217 (1991). 

"^See Frye Report at 131 n. 209; App. B at 1 . 

2^'29 CFR §1613.218(a) (1991). 

2^9 CFR §1613.218(b) (1991). Frye reports that EEOC AJs handle a caseload of 6,227 
cases per year or an average of approximately 79 cases per AJ. Frye Report at 134 n. 222; App. 
B at 1 . Not all of these cases proceed to a hearing before the AJ, however. 

^9 CFR §1613.218 (1991). After receipt of the recommended decision, the agency head 
nwkes the decision on the complaint. 29 CFR §1613.221 (1991). 

^9 CFR §1613.231 (1991). 

2«^9 CFR §1613.234 (1991). 



846 Verkuil, Gifford, Koch, Pierce, and Lubbers 



five members of the NLRB are, like the five members of the EEOC, appointed 
by the President and confirmed by the Senate for terms of 5 years. ^ The 
NLRB is charged with the responsibility for preventing unfair labor 
practices.^ While the NLRB is the agency charged with administering the 
Labor Act, a person complaining of an unfair labor practice files a charge with 
one of the Board's Regional Offices, which operates under the supervision of 
the Board's General Counsel. The General Counsel, although in form acting 
for the Board, is statutorily independent of it. Indeed, the General Counsel is 
appointed to that office for a 4-year term by the President with Senate 
confirmation. 2** Thus, the investigative and enforcement arm of Labor Act 
administration is formally separated from the adjudicating function inherent in 
the NLRB. There is no corresponding formal separation of functions in the 
EEOC. 

After a charge is filed with the Regional Office, the charge is investigated, 
and if the Regional Office so decides, a formal complaint will be issued. A 
hearing is held before one of the NLRB's 83 ALJs,^^ with review by the 
Board and ftirther review in the federal courts of appeals. In fiscal year 1988, 
the Regional Offices issued 3,450 complaints commencing formal unfair labor 
practice proceedings, but because most such proceedings are settled, AUs 
actually presided at only 835 hearings and issued 628 decisions.^ 

Although in the pre-APA period, the decisions of NLRB hearing examiners 
were widely suspected of often being skewed for policy reasons or because the 
examiners were under the influence of the enforcement unit, today the 
decisions of the adjudicators presiding in unfair labor practice cases are doubly 
insulated against the possibility of enforcement-oriented influence. First, the 
enactment of the APA provided statutory insulation for hearing examiners and 
their ALJ successors from pressures exerted by the agencies for which they 
work. Under the APA, agencies cannot dismiss AUs nor rate them for pay 
and promotion. These protections were designed to ensure that the 
determination on evidentiary facts is made impartially by an official whom the 
public can see is not subject to agency influence. Second, shortly after 
enactment of the APA, Congress enacted the Taft-Hartley Act, which took 
mvestigative and enforcement powers away from the NLRB and vested them in 
the Board's General Counsel. Today, therefore, the AU who presides in an 
unfair labor practice is doubly insulated from the authority charged with 



28<79 U.S.C. §153 (1988). 
^''29U.S.C. §160(1988). 
2*829 U.S.C. §153(d) (1988). 

^^See Office of Personnel Management, Total Number of AUs on Board as of June 25, 
1991. 

2*>NLRB, 53d Ann. Rep. 2, 8, 191 (Table 3A) (1988). 



The Federal Administrative Judiciary 847 



investigation and enforcement. Those tasks belong to the independently 
tenured General Counsel. Furthermore, the Board itself, although now 
reduced to adjudicating, nevertheless remains subject to the provisions of the 
APA prohibiting it from dismissing its AUs or rating them for pay or 
promotion. 

The AJ who presides in the EEOC proceeding appears to bear some 
affirmative responsibility for ferreting out the facts, perhaps in the tradition of 
an inquisitorial proceeding of the type described in Richardson v. Perales. By 
contrast, the AU presiding in the NLRB proceeding tends to resemble a judge, 
receiving evidence introduced by the contending parties. In both types of 
proceedings, the presiding officers must make the kind of factual 
determinations that turn on evaluations of witness credibility. Although their 
decisions are subject to review and revision, their resolutions of credibility 
issues are nonetheless important. Indeed, these credibility resolutions may 
impose practical constraints upon the abilities of the agencies in charge (the 
EEOC or the NLRB) to reach different results. 

The AJs for the EEOC handle a caseload that, on the surface, appears to be 
close to twice the caseload of the NLRB ALJs. Frye reports that the EEOC 
AJs handled 6,227 cases, ^' whereas only 3,450 complaints instituting formal 
unfair labor practice proceedings were issued in fiscal year 1988.^^ Because 
the EEOC AJs are apparently charged with investigating as well as deciding in 
the tradition of an inquisitorial proceeding, the EEOC AJ probably bears a 
substantial burden of negotiation in the cases settled prior to issuance of the AJ 
recommendation. By contrast, the Regional Office that is prosecuting the 
unfair labor practice proceeding probably bears most of the negotiation 
burden, thereby limiting AUs to the tasks of hearing and deciding. Despite 
their apparently more limited role, NLRB AUs presided over only 835 
hearings and actually issued only 628 decisions. Averaging the reported 
caseload among the available adjudicators indicates that an average EEOC AJ 
handles approximately 79 cases per year or 6.58 cases per month. Allocating 
the entire 3,450 complaints among the NLRB's AUs would produce a 
caseload of 41.56 cases per AU per year or 3.46 cases per month. This likely 
overstates the AU task, however, for the reasons stated. In terms of hearings 
and decisions, the NLRB AU averages 10 hearings and 7.56 decisions per 
year or .83 hearings and .63 decisions per month. 

The numbers indicate that the NLRB AUs handle substantially fewer cases 
than do the EEOC AJs. The AUs, however, must resolve difficult contested 
issues in cases in which the parties are well -prepared and represented by 



^^See note 282 supra note. 

"^^See text at note 290 and note 290 supra. 



848 Verkuil, Gifford, Koch, Pierce, and Lubbers 



counsel. Moreover, the AUs operate in a highly formal setting in which 
parties have the opportunity to cross-examine, make motions, submit briefs 
and engage in other time-consuming behavior. In addition, the pressures on 
the AUs to render carefully wrought and defensible decisions are strong, and 
the AUs accordingly take the time necessary to prepare decisions that will 
stand up to attack. The somewhat less formal methods employed in the EEOC 
proceedings as well as the reduced role of counsel or the entire absence of 
counsel allow the EEOC AJs to prepare their recommendations more 
quickly.^ Despite the additional burden of carrying on negotiations, the 
relative informality under which the EEOC AJs operate may nonetheless 
permit them to bear a numerically heavier caseload. Finally, it should be 
observed that the very opportunity to help negotiate a settlement may itself 
assist the AJs to dispose of their caseload with dispatch. 

The AJ who presides over the EEOC adjudication lacks the statutory 
protections of an AU. The EEOC rules properly are concerned that the 
presiding AJ come from outside the agency against which the employment 
discrimination complaint is made. This rule obviously guards against the kind 
of agency pressure most likely to arise in an employment discrimination case. 
The impartiality of the decision is ensured by protecting the adjudicator from 
agency influence to decide against the complainant. Yet there is nothing in the 
rule that guards against the EEOC itself exerting pressure on EEOC AJs to 
decide in favor of the complainant or in any other way that the EEOC wants. 
The protection afforded to the AJ is thus narrow, but probably adequate. 
Neither Congress nor the administering agency has seen a need for APA-like 
insulation of the AJ to achieve actual impartiality and widespread recognition 
and acceptance of the AJ's impartiality. 

The reasons for this difference in protection accorded the AJ in the EEOC 
proceeding from that accorded the AU in the NLRB proceeding are largely 
historical. As noted, the independence of the AU was the answer to 
complaints that the NLRB's hearing examiners were skewmg the evidentiary 
facts for policy reasons. The APA was designed to protect the integrity of the 
evidentiary fact determination by protecting hearing examiners (and their AU 
successors) from retribution by the agency. Because there has been no widely- 
held equivalent concern that the EEOC would coerce its hearing officers into 
skewing the facts for policy reasons, there has been no reason to replicate the 
formal protections the APA accords to AUs. TTie only protections against 



^^^ecent amendments to the procedural rules governing federal employee proceedings 
permit fomwl discovery, 57 Fed.Reg. 12634 (April 10, 1992), to be codified at 29 CFR Part 
1614. It should also be noted that unlike AUs, EEOC AJS are subject to performance 
evaluations, one element of which is "quality of decisions." Letter from EEOC Administrative 
Judge Martin K. Magid to ACUS, June 5, 1992. 



The Federal Administrative Judiciary 849 



agency influence are the narrow ones designed to guard against pressure and 
influence by the employing agency. 

The recent experience of the EEOC may provide a model for 
administration. Under the EEOC model the adjudicator should be protected 
from potential pressures emanating from sources likely to be interested in the 
outcome of the case. That is why the adjudicator cannot come from the agency 
charged with employment discrimination. But there is no need to insulate the 
adjudicator more widely than necessary. Note that the EEOC rule 
contemplates that the likely pressure is case specific: the prohibition extends 
to appointing an adjudicator from the particular agency against which a 
complaint has been made. There is nothing in the EEOC rules that 
contemplates that an adjudicating officer is likely to be subject to continuing 
pressures from a specific governmental source— as from investigators, for 
example. 



B. Licensing Adjudication by FERC and NRC 

Both the Federal Energy Regulatory Commission and the Nuclear 
Regulatory Commission adjudicate disputes involving energy regulation, 
including exercise of licensing functions. FERC relies heavily on ALJs, while 
NRC relies heavily on non-AU adjudicatory officers. Unfortunately, the 
nature of the disputes adjudicated by the two agencies differ in so many other 
important respects that it is impossible to isolate differences in the two 
adjudicatory systems that are related to the different types of adjudicatory 
officers used by each agency. 

1. The FERC Adjudication Process 

FERC relies exclusively on AUs to preside over its adjudications and to 
issue initial decisions. FERC reviews almost all AU initial decisions and 
substitutes its judgment for that of the AU with some frequency. FERC 
review of an initial decision adds considerable delay to the adjudicatory 
decisionmaking process. Almost all FERC adjudications involve a 
complicated mix of disputes concerning law, policy, adjudicatory facts, and 
legislative facts. 

FERC's 23 AUs completed 109 adjudicatory proceedings during the 
period October 1, 1990 through September 30, 1991. They were also assigned 
73 new proceedings during that period. The completed cases were in the 
following categories: 21 electric rate cases, 2 hydroelectric licensing cases, 9 
"other" electric cases (e.g., complaints against utilities and proposed utility 
mergers), 53 gas pipeline rate cases, 6 disputes involving gas producers, 5 



850 Verkuil, Gifford, Koch, Pierce, and Lubbers 



proceedings to certificate (license) gas pipelines, 3 oil pipeline rate cases, 9 
appeals of Department of Energy (DOE) remedial orders, and 1 DOE dispute 
with a contractor or employee. 

A typical FERC adjudication involves multiple issues and multiple parties. 
Scores of separately represented parties each take a different position and 
presents evidence in support of that position. In the typical case, an ALJ 
either must resolve disputes concerning allocation of hundreds of millions of 
dollars in increased costs of gas or electricity or must decide whether a major 
new facility should be constructed. The stakes rarely are less than $100 
million; occasionally, the stakes are well over $1 billion. 

Many FERC adjudications require a hearing that lasts 2 to 3 months and 
yields a record well in excess of 10,000 pages. The task of writing an initial 
decision based on such a record is extremely demanding. TTie elapsed time 
between close of the hearing and issuance of an initial decision varies from 2 
months to 1 year, depending on the complexity of the case and the length of 
the record. In addition, FERC AUs issued 1,653 procedural and interlocutory 
orders during the 1990 fiscal year. The typical disputed issues are economic 
and environmental. 

In selecting a new ALJ, FERC looks for heavy trial experience, a 
background in regulation of economic activity, good writing ability, judicial 
temperament, and proven negotiating ability. It has difficulty identifying 
individuals who meet all these criteria, however. It relies on training to fill 
any gaps in prior experience. Almost all FERC's AUs had extensive prior 
experience in government. In most cases, that experience included extensive 
involvement in some form of regulation of economic activity. 

2. The NRC Adjudication Process 

NRC relies heavily on non-ALJ adjudicatory officers. At the end of fiscal 
year 1990, NRC had 30 administrative judges (AJs) and 2 AUs. Nine of the 
AJs are lawyers. The other AJs have advanced degrees in public health, 
environmental science, engineering, physics, or medicine. In the bulk of 
cases, NRC assigns a panel of three adjudicatory officers. One member of the 
panel is an ALJ or a lawyer AJ; the other two have advanced degrees in 
science or engineering. NRC AJs are not protected by the statutory safeguards 
of independence that apply to AUs. In fact, however, NRC voluntarily 
refrains from any effort to evaluate the performance of its AJs. As a result, its 
AJs are as independent as its AUs. When it convenes a panel, NRC uses its 
AUs and its lawyer AJs interchangeably. Occasionally, it assigns an AU to 
hear a civil penalty case alone if the subject matter does not warrant convening 
a panel. 



The Federal Administrative Judiciary 85 1 



All NRC adjudicatory officers are members of the Atomic Safety and 
Licensing Board Panel (ASLBP). The ASLBP and the use of three-judge 
panels drawn from the ASLBP is specifically authorized by the Atomic Energy 
Act, 42 U.S.C. §2241 (a): 

[n]otwithstanding the provisions of sections 7(a) and 8(a) of 
the Administrative Procedure Act,... establish one or more 
atomic safety and licensing boards, each comprised of three 
members, one of whom shall be qualified in the conduct of 
administrative proceedings and two of whom shall have such 
technical or other qualifications as the Commission deems 
appropriate to the issues to be decided, to conduct such 
hearings as the Commission may direct and make such 
intermediate or final decisions as the Commission may 
authorize with respect to the granting, suspending, revoking 
or amending of any license or authorization under the 
provisions of this Act. . . . 

The use of three-judge panels has obvious advantages and disadvantages. 
The main disadvantage is cost. Obviously, three judges cost more than one. 
The main advantages are higher quality decisionmaking and greater public 
acceptance of decisionmaking. Those advantages are attributable both to the 
common sense notion that three minds are better than one and to the differing 
educational background and expertise of the three judges. The agency is 
confident that the advantages outweigh the disadvantages because: (1) most of 
its adjudications involve complicated scientific disputes, and (2) its 
adjudications often provoke extreme public controversy. 

Traditionally, NRC's adjudicatory docket has been dominated by 
applications to construct or to operate nuclear power plants. It completed 560 
cases of this type between 1962 and 1990. Each such case is extraordinarily 
complicated and contentious, with numerous disputes concerning physics, 
engineering, health, safety, and environmental impact. Although the NRC's 
figures indicate that construction permit proceedings averaged about 12 months 
(for all cases from 1962-91) and operating license permit proceedings avaraged 
53 months (for all cases from 1982-91), the time for completing such 
proceedings has increased markedly by the end of the period. In 1990, for 
example, the generating plants at issue cost in excess of $3 billion each, a 
construction permit proceeding completed in that year required 76 months, and 
two operating permit proceedings averaged 97 months to complete. 

By fiscal year 1990, the case mix had changed considerably because of the 
absence of any new applications to construct or operate nuclear power plants 
during the 1980s. In February 1990, NRC completed adjudication of 40 
cases. The caseload mix was: initial operating license (2), construction permit 



852 Verkuil, Gifford, Koch, Pierce, and Lubbers 



(1), enforcement (19), material license (5), operating license amendment (6), 
and other (10). Almost all NRC adjudications are complicated and 
contentious, but most are not as massive as licensing and construction cases. 
Thus, for instance, the average enforcement case requires 8.5 months from 
date of convening a panel to date of conclusion. NRC's staff of adjudicatory 
officers has declined as its caseload has declined. 

NRC selects all AJs and AUs based on recognized achievement in their 
respective fields of endeavor. AUs and lawyer AJs are required to have 7 to 
10 years of litigation experience before federal or state courts or agencies. A 
selection committee reviews all applicants and submits the names of three 
qualified applicants to the five Commissioners, which makes all appointments 
to the ASLBP. 



C. Sanctions and Civil Penalty Adjudication 



1. Immigration Adjudication 

There are three separate corps of adjudicators in the Department of Justice 
(DOJ) who preside over immigration and related cases. The largest group, 
known as immigration judges (Us) (officially "special inquiry officers"), ^^ 
were in existence prior to enactment of the APA. Issues concerning their role 
and independence led to two landmark cases interpreting the separation-of- 
functions requirements of the APA.^^ In 1983, to help assuage continuing 
concerns about the independence of Us, the Department created an independent 
Executive Office for Immigration Review" (EOIR) and placed the Us (as well 
as its reviewing board, the Board of Immigration Review) in it.^^ There are 
currently 88 Us headed by a Chief Immigration Judge and five Assistant 
Chiefs.2^ 



"^See 8 U.S.C. §1101 (b)(4). See 8 CFR §1.1 (e) which provides that the terms can be used 
interchangeably. Legislation introduced in the Senate, S. 2099, 102nd Cong. 1st Sess., reprinted 
in 137 Cong. Rec. S. 18417 (daily ed. November 26, 1991), would officially change the name to 
"immigration judge." 

^^See Wong Yang Sung v. McGrath, 339 U.S. 33 (1950) (APA adjudication provisions 
apply to deportation hearings and hearing officers may not be assigned other investigative duties) 
and Marcello v. Bonds, 349 U.S. 302 (1955) (1952 legislation making special inquiry officers 
subject to district director supervisor supersedes APA separalion-of-functions provisions and does 
not violate due process.) 

2^48 Fed. Reg. 8039 (February 25, 1983), codified at 8 CFR Part 3 (1991). 

'^Interview with Chief Immigration Judge William R. Robie, February 1992. 



The Federal Administrative Judiciary 853 



In 1986, the passage of the Immigration and Control Act of 1986 (IRCA) 
created two new categories of on-the-record APA proceedings: cases 
involving sanctions against employers for hiring illegal aliens^^ or for 
discriminating against individuals (other than illegal aliens) because of their 
national origin.^*' The Department currently has four AUs who are also 
lodged in EOIR under the managerial supervision of a Chief Administrative 
Hearing Officer (CAHO) (there is no Chief AU).^ 

The newest group of adjudicators are "asylum officers" assigned to 
adjudicate all asylum claims under regulations promulgated in July 1990.^' 
There are about 120 asylum officers located in 7 asylum offices. ^^^^ INS has 
received authorization to hire about 100 more officers. ^^ These officers are 
not in EOIR; they report to an INS Branch Chief within INS' Central Office of 
Refugees, Asylum and Parole,^ who, in turn, reports to the Deputy 
Commissioner. 

The three types of immigration adjudicators at the Department of Justice 
form a microcosm of the U.S. government's administrative adjudicators: 
AUs, non-AU semi-specialized adjudicators, and highly specialized non-AU 
adjudicators. 

a. TheDOJALJs 

Other than two AUs in the DOJ's Drug Enforcement Administration, the 
only AUs in the DOJ are the four assigned to hear employer sanction, 
discrimination, and document fraud cases in the EOIR.^^ 

The most unusual facet of the AU's role in these cases is the extra degree 
of finality given to their decisions. In employer sanction and document fraud 
cases, there is no statutory right to appeal the decision of the AU. Rather, the 



^'^IRCA §101, adding section 274A to the Immigration and Nationality Act, codified at 8 
U.S.C. §1324a (1988). 

^^^CA §102, adding section 274B to the Immigration and Nationality Act, codified at 8 
U.S.C. §1324b (1988). The Immigration Act of 1990 added a new category of ALJ hearings-in 
cases involving allegations of document fraud, section 274C, codified at 8 U.S.C. §1324c. 

^°^e role of the CAHO is described at 28 CFR §68.2 (1991). 

^•55 Fed. Reg. 30680 (July 27, 1990) codified at 8 CFR Part 208 (1991). 

^^See "INS Opens Asylum Offices Amid Large Backlogs, Charges of Inadequate Funding," 
6% Interpreter Releases, April 8, 1991 401-403 (April 8, 1991). 

^^[Published reports.] 

^See%CFK §308. 1(b). 

•^^The Department of Justice conducts very few formal adjudications. See 28 CFR §24.103 
(1991), listing the Department's formal adjudicatory proceedings covered by the Equal Access to 
Justice Act. 



854 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Act authorizes the Attorney General to "review" the decision within 30 days.*^ 
This authority has been delegated to the Chief Administrative Hearing 
Officer.^ The Department's regulations provide that any party may, within 5 
days of the AU's decision file a written request for review by the CAHO.^ 
The CAHO then has 30 days to issue an order that adopts, affirms, modifies, 
or vacates the AU's decision, which becomes the Attorney General's final 
order.^'**^ In discrimination cases, there is no administrative review— the AU's 
decision is final agency action. ^'° 

The role of the CAHO, both in managing the AUs and reviewing AU 
decisions is an interesting one, perhaps worth further study. 

b. Immigration Judges 

The Us adjudicate the bulk of immigration decisions for the U.S. 
government.^'' The three principal types of immigration proceedings 
conducted by Us are deportation hearings, board redetermination hearings, and 
exclusion hearings.''^ Occasional hearings involving rescission of permanent 
residence status, prevention of departure of an alien from the United States, or 
disciplinary proceedings against attorneys and other representatives, are also 
held. 

The three main types of hearings are as follows. ^'^ 

(i) Deportation Hearing 

A deportation case usually arises when INS alleges that a respondent 
entered the country illegally by crossing the border without being inspected by 
an immigration officer. Deportation cases also occur when INS alleges that a 



^ U.S.C. §1324a(e)(6) (1988). For a good description of the process see Schmidt, 
'Establishing an Employer Compliance Program Under IRCA' in Immigration Briefings No. 88-3 
(1988) (Federal Publications, Inc.). 

^28 CFR §68.51 (1991). 

^Id. 

^Id. 

^'08 U.S.C. §1324bC0(l) (1988); 28 CFR §68.52a)(b) (1991). 

•'''Not counting, of course, the many informal decisions, made by, among others. State 
Department consular officers on visa applications. See Nafeiger, Report to the Administrative 
Conference of the U.S., 1989 ACUS 587, reprinted as Review of Visa Denials By Consular 
Officials, 66 Wash. L. Rev. 1 (1991). 

^'^This comment and much of following discussion derived from a letter from William R. 
Robie, Chief Immigration Judge to Jeffrey S. Lubbers, Research Director, ACUS, October 12, 
1989, responding to non-AU adjudication survey. 

^'^Slighlly edited quotation from Robie letter (page 1 and 2 of atuchment), supra note 312. 



The Federal Administrative Judiciary 855 



respondent entered the country legally with a visa but then violated one or 
more conditions of the visa. For example, a visitor who comes to the United 
States for a specified time period but stays in the country beyond the visa 
expiration date violates a condition of the visa and is subject to deportation 
proceedings. 

When INS becomes aware of a respondent whom it believes to be 
deportable, it issues a charging document called an Order to Show Cause 
(OSC). A deportation proceeding actually begins when the OSC is filed with 
an U office. In such proceedings, the government, represented by INS, must 
prove that a respondent is deportable for the reasons stated in the OSC. 

(ii) Bond Redetermination Hearing 

The INS may detain a respondent who is in a deportation proceeding and 
condition his/her release from custody upon the payment of a bond to ensure 
the respondent's appearance at the hearing. When this occurs, the respondent 
has the right to ask an Immigration Judge to redetermine the bond. In a bond 
redetermination hearing, the U can raise, lower, or maintain the amount of the 
bond, or eliminate it altogether, or change any of the conditions over which 
the U has authority. The bond redetermination hearing is completely separate 
from the deportation hearing. It is not recorded and has no bearing on the 
existing deportation proceeding. 

(Hi) Exclusion Hearing 

An exclusion case involves a person who tries to enter the United States but 
is stopped at the point of entry because the INS finds the person to be 
inadmissible. This situation can occur, for example, when an INS officer 
believes the applicant's entry papers are fraudulent. 

To place an applicant for admission to the United States in exclusion 
proceedings, the INS issues a charging document referred to as an "1-122" and 
files it with an U. Unlike in deportation proceedings, the INS has sole 
jurisdiction over the custody status of an applicant in exclusion proceedings. 
The INS District Director can either detain the applicant or parole the applicant 
into the country (i.e., release him/her from detention and allow him/her to 
remain free until the hearing is completed). In either case, the applicant 
technically has not entered the country. In the course of the exclusion 
proceedings, the burden of proof is on the applicant to prove admissibility to 
the United States. 

The caseload of the Office of Immigration Judges is quite high. In fiscal 
year 1989, the Office received 152,370 cases (120,000 deportation cases. 



856 Verkuil, Gifford, Koch, Pierce, and Lubbers 



14,000 exclusion cases and 18,000 bond redetermination cases). ^'^ According 
to the Chief Immigration Judge, the intake varies with changes in immigration 
law and court cases requiring readjudication of certain nationalities' cases, but 
he estimates that about 135,000 cases are decided each year by his corps, ^'^ 

U positions are classified as Attorney Examiners in the 905 civil service 
series. ^'^ They are appointed by the Attorney General with the 
recommendation of the Chief Immigration Judge. Us are GS-15 positions with 
the exception of the Chief who is in the Senior Executive Service. However, 
legislation has recently been introduced to raise the pay of Us to that 
equivalent to,^'^ or just below, ^'* that of AUs. 

Us are required to be members of the bar in good standing of any state or 
the District of Columbia. They must have 6-1/2 years of professional legal 
experience and may be required to have various "selective placement 
factors. "^'^ These factors and the U hiring process are described in Chapter 
VI(D), below. 

The Chief Immigration Judge indicates that Us are "not subject to 
performance appraisal," nor have quantitative case-processing goals been 
established.^^ However, the Chief does approve master and individual 
calendars of hearings, which allows him to monitor workloads and to give 
appropriate comments to the judges. ^^' In terms of qualitative review, the only 
such review is the substantive, appellate review exercised by the Board of 
Immigration Appeals. ^^ 

c. Asylum Officers 

The Refugee Act of 1980 created a statutory right of asylum for aliens in 
the United States or seeking to enter the United States who could demonstrate 



^'^Robie letter (page 4 of attachment) . 

^'^Inlerview with Chief Judge Robie, February, 1992. 

•**^obie letter (page 4 of attachment) . 

^'"'H.R. 2630, 102nd Cong. 1st Sess., June 12, 1991 (by Mr. Ortiz). (Us shall be treated "in 
the same manner as ALIs" for purposes of compensation.) 

^•*S. 2099 {supra note 294) which would place Us into six pay levels (U-1 to U-6) tied to a 
percentage of level 5 of the SES pay schedule. This would be just below the pay of AUs who 
are tied to level IV of the Executive Schedule. 

^'^obie letter, supra note 312, at page 5 of attachment. 

^^Id. at page 6 of atUchment. 



The Federal Administrative Judiciary 857 



a "well-founded fear of persecution. . . on account of race, religion, national 
origin, membership in a particular social group or political opinion. "^^ 

To implement the Refugee Act, the Attorney General in July 1990 
promulgated regulations for asylum adjudication.^^ Under these procedures, 
applicants who apply prior to the initiation of deportation or exclusion 
proceedings file with the INS and have the claim heard by an asylum officer. 
Applicants who file for asylum in the course of deportation or exclusion 
proceedings will continue to have the claim heard by the U. Prior to the 
establishment of this separate group of Asylum Officers, pre-U claims of 
asylum were heard by examiners in District Directors' offices. 

Following the 1990 Act, the INS moved quickly to hire and train about 120 
fiill- and part-time officers. However, a large backlog built up. As of April 
1991 the backlog was 108,500 cases. ^^^ 

Asylum officers are classified as GS-9, 11 and 12^^ and only a few are 
lawyers. The procedures for the "interview" conducted by the Asylum 
Officers are set out in 8 CFR §208.9 (1991). The proceeding is 
nonadversarial, although the applicant may be represented by counsel or 
another representative and may submit affidavits. Presentation of oral 
statements and oral testimony of witnesses is at the discretion of the officer. It 
is essentially an inquisitorial proceeding. 

2. Security Clearance Adjudications 

Reviews of denials of security clearances for Department of Defense 
contractors are heard by non-AU adjudicators in the Directorate for Industrial 
Security Clearance Review (DISCR), which is part of the DOD.^^^ Cases come 
to DISCR when the Defense Industrial Security Clearance Office cannot 
affirmatively determine that it is clearly consistent with the national interest to 
grant or continue a security clearance for access to classified information by 
individuals employed by certain federal contractors. All individuals who will 
have access to classified material in connection with their work must have the 



'^8 U.S.C. §1101(a)(42) (1988). See generally, Martin, Reforming Asylum Adjudication: 
On Navigating the Coast of Bohemia, 138 U. Pa. L. Rev. 1247 (1990); 1989 ACUS 233. 

^^See note 301, supra. The regulations followed the basic thrust of ACUS Recommendation 
89-4, "Asylum Adjudication Procedures," 1 CFR §305.89-4 (1991) based on the Martin study, 
supra note 323 . 

^^See Interpreter Releases (April 18, 1991) supra, note 302. 

^^See "INS Recruits Asylum Officers," 67 Interpreter Releases 1 159 (October 15, 1990). 

•'^^Much of the information in this section comes from a letter response to a 1989 Conference 
survey of non-AU hearing programs in the federal government. Letter (with attachments) from 
Leon J. Schacter, Chief Hearing Examiner, DISCR, to Jeffrey S. Lubbers, Research Director, 
ACUS, July 13, 1989. 



858 Verkuil, Gifford, Koch, Pierce, and Lubbers 



appropriate security clearance. An individual whose clearance is not granted 
or continued may request a hearing by DISCR. 

DISCR consists of eight hearing examiners and a Chief Hearing Officer, a 
number of "prosecuting" attorneys, and a three-member appeal board, all 
under the control of a Director. All are attorneys, appointed by the General 
Counsel of DOD. Hearing examiners do not also serve as prosecuting 
attorneys. 

The procedures used in DISCR' s approximately 650 cases per year are 
relatively formal, but are not APA processes. The process derives from 
Executive Order 10865,^^ which provides some basic procedural protections. 
Among those protections are provision to the applicant of (1) a written 
statement of the reasons why a clearance may be revoked or denied; (2) an 
opportunity to respond to that statement in writing; (3) the right to assistance 
of counsel; (4) an opportunity to submit direct and rebuttal evidence and, with 
some exceptions, to cross-examine adverse witnesses, either orally or through 
written interrogatories; and (5) a written decision stating the findings on each 
of the allegations.^^ The relevant DOD regulations state that the presiding 
officer's functions are to be exercised impartially, and provide somewhat more 
detailed procedures, including appeals from a presiding officer to an appeal 
board.330 

Hearing examiners are grade 15 attorneys, on the general merit schedule. 
They are subject to performance appraisals by the Chief Hearing Examiner, 
who, in turn, is reviewed by the Director of DISCR. Among the factors 
considered in performance appraisals are the numbers and complexity of 
completed cases, and supervisory review of decisions after issuance, including 
consideration of the proper application of DOD policies and legal principles. 
Among the other "critical elements" are "assur[ing] that proceedings are fair 
and impartial," "assur[ing] quality determinations," and "assur[ing] timeliness 
and productivity.""' 

There has been some criticism of the review process from former DISCR 
presiding officers and concerns raised relating to the level of independence and 



32825 Fed. Reg. 1583 (Feb. 1960). 

329id.at13. 

3^2 CFR Part 155 (1991). See also DOD Directive 5220.6 (August 12, 1985). These njles 
were recenUy amended. 57 Fed. Reg. 5383 (Feb. 14, 1992). 

33'May 19, 1990, letter to Hon. Don Edwards, Chair, Subcommittee on Civil and 
Constitutional RighU, Committee on the Judiciary, and Hon. Gerry Sikorski, Chair, 
Subcommittee on Civil Service, Committee on Post Office and Civil Service, U.S. House of 
Representatives from Leon J. Schachter, Director, DISCR. 



The Federal Administrative Judiciary 859 



separation of function in a program that adjudicates such serious interests. ^^^ 
The House Civil Service Subcommittee of the Committee on Post Office and 
Civil Service is drafting legislation to modify the system.^^' 

3. Merit Systems Protection Board (MSPB) Adjudications 

The MSPB en^)loys one of the larger groups of non-AU adjudicators in 
the govemment.^^ The Board employs 66 administrative judges"^ in its 11 
regional offices who preside over, and make initial decisions in, numerous 
types of personnel appeals involving federal employees.'^ The MSPB also 
employs one administrative law judge one of whose important functions is to 
hear and initially decide actions brought by agencies against AUs."^ 

Although AJ cases are not heard under the APA hearing provisions,'^ the 
hearings are on-the-record, trial-type hearings essentially similar to those 
conducted under the APA."' 

During fiscal year 1988, MSPB AJs held 1,278 hearings and issued 7,124 
initial decisions.^ Initial decisions are subject to petitions for review to (or 
own-motion review by) the ftill Board, which may allow oral argument in its 



"^The American Bar Association has approved a resolution calling for the use of APA 
procedures in DISCR proceedings. See ABA House of Delegates Resolution 101/134 (August 
1989). 

^•'■^Discussion with subconunittee staff members. 

^^*Much of the information in this section is derived from a letter response to a 1989 
Conference survey of non-AU hearing programs in the federal government. Letter (with 
attachment) from Mark Kelleher, Director of Regional Operations, MSPB to Jeffrey Lubbers, 
Research Director, ACUS, July 24, 1989. 

^^^SPB considers their "official title" to be "Attorney-Examiner, GS-905" and their 
"working title" to be "Administrative Judge." Letter, supra note 334 (attachment p. 2). 

^^^e different types of appeals are listed in 5 CFR §1201.3 (1991). See also 5 U.S.C. 
7701(a)(1) (1988). 

"^Pursuant to 5 U.S.C. §7521 (1988); 5 CFR 1201.131 (1991). 

^^5 U.S.C. §554(a)(2) exempts cases involving "the selection or tenure of an employee, 
except (an ALJ)" from the hearing provisions of the APA, thus permitting MSPB to use non-ALJ, 
Under 5 U.S.C. §7701(b), the MSPB is empowered to assign such hearings to itself, an AU or 
an employee designated by the Board to hear such cases. In removal cases, that employee must 
be "experienced in hearing appeals." Id. 

^^^See Rules of Practices and Procedures, 5 CFR Part 1201 (1991) and 5 CFR Part 1209 
(1991) (whisUeblower cases). 

**^tter, supra note 334 (attachment p.l). See also Luneburg, The Federal Personnel 
Complaint, Appeal and Grievance Systems: A Structured Overview and Proposed Revisions 78 
Ky. L.J. 1,62-67(1989-90). 



860 Verkuil, Gifford, Koch, Pierce, and Lubbers 



discretion.^* MSPB decisions are reported in the West United States Merit 
Systems Protection Board Digest. ^^ 

MSPB AJs are employed as GS-13 to OS- 15 attorneys in accordance with 
schedule A appointment authority. ^^ AJ performance is also subject to review. 
The Regional Director (Chief Administrative Judge) completes an annual 
performance appraisal for each AJ.^ As part of this review, each AJ is 
required to adjudicate a minimum number of appeals per year. As of 1989, 
minimally satisfactory performance was 80-84 cases per year; fiilly satisfactory 
was 85-100; and exceeds was 101-120.^^ The Regional Director also is 
responsible for ensuring that all decisions undergo a quality review prior to 
issuance. ^*^ 

In at least one litigated case, an MSPB AJ has been terminated due to 
unacceptable performance. The reviewing court upheld the firing and the 
legitimacy of the Board's quality review program.^' 

Regardless of the merits of this case, there has been some critical comment 
about the lack of independence of Board AJs^ and legislation is pending to 
afford AJs most of the protection of AUs without making them ALJs.^^ 



^^Id. (attachment p. 2). The letter goes on to say that "the methods used for selecting 
applicants may include recruitment from a Vacancy Announcement, college recruitment, 
reassignment of in-house attorneys, and inquiries from unsolicited outside applicants." Id. In a 
subsequent letter, the Board explained that it had erroneously mentioned "college recruitment" 
and had intended to say law school recruitment. Letter from Mary L. Jennings, Acting General 
Counsel to Jeffrey Lubbers, September 3, 1992. 

^Id. 

^Id. 

^d. (atuchment p. 3). 

^''Fuller V. United Staus of America, (Mem. opinion, D.D.C. Civil Action No. 84-1699, 
December 19, 1985) (Gesell, J.), "Quality review subjected plaintiffs work to close analysis, 
disclosing serious deficiencies, particularly her lack of analytical ability and her inconsistencies in 
applying facts to precedents." (Memo. op. at p. 6). 

^^See, e.g., Luneburg, supra note 340 at 117, n. 557, "The Board's administrative judges 
are currently excepted service attorneys serving at the will of the Board. Affording these officials 
the protections in terms of salary and tenure of administrative law judges is an additional possible 
change that might alter perceptions of the Board and ease the way for exclusive MPSB 
jurisdiction [in mixed cases, now shared with EEOC.]" 

^'^See, H.R. 3879, "The Merit Systems Protection Board Administrative Judges Protection 
Act of 1991" (by Mr. Gekas), 102nd Cong., 1st Sess. The bill would require cases to be 
assigned to AJs by rotation, prohibit them from performing inconsistent functions, entitle them to 
pay prescribed by OPM independent of agency rating, include them in the section 7521 
disciplinary scheme used for AUs and bar performance appraisals. 



The Federal Administrative Judiciary 86 1 



4. Use of Non-AU Decisionmakers in Civil Money Penalty 
Proceedings 

In the last two decades, Congress has frequently replaced the traditional 
civil enforcement statutes that permitted agencies to collect civil money 
penalties only after federal district court trials with provisions authorizing 
"administrative imposition" of penalties involving ALJ adjudication.-'^ By 
1986, there were over 200 such statutes. ^^' 

Although virtually all the administratively-imposed civil money penalty 
processes involve the use of ALJs and formal hearing procedures, there are a 
small number of cases, in the environmental enforcement area, for which 
Congress has authorized the use of non-AU hearing officers, and non-APA 
hearing procedures, in the imposition of relatively small levels of money 
penalties. ^^^ Several of these programs are administered by EPA, although the 
Coast Guard and the Corps of Engineers also administer similar types of 
penalty programs. The non-ALJ penalty programs generally are limited to 
smaller penalties; more formal procedures are required as the level of penalties 
increases. In most cases, informal procedures may be used for penalties up to 
$25,000, although in at least one case, the upper limit is $125,000. Congress' 
expressed intent in enacting these programs was to make the penalty imposition 
process more flexible and shorter. In so doing. Congress was responding to 
agency (EPA) pleas that subjecting all civil penalties to APA procedures would 
lead to "lengthy and laborious" proceedings and "require creation of a new 
layer of bureaucracy" (presumably meaning additional AUs).^" 



^^^ so doing, Congress was following ACUS Recommendation 72-6, "Civil Money 
Penalties as a Sanction," 1 CFR §305.72-6 (1992), reaffirmed by Recommendation 79-3, 
"Agency Assessment and Mitigation of Civil Money Penalties," 1 CFR §305.79-3 (1992). 

^^'See "Table of Statutes Authorizing Enforcement Through Administrative Imposition of 
Civil Penalties," at 200 Cong. Rec. SI 3009 (Daily ed. Sept. 19,1986). The trend has, if 
anything, accelerated since 1986. See Fair Housing Act Amendments of 1988, Pub. L. No. 1- 
00-430, 102 Stat. 1619 (1988); Financial Institution Reform, Recovery and Enforcement Act, 
Pub. L. No. 101-73 (1989); Securities Enforcement Remedies and Penny Stock Reform Act of 
1990, Pub. L. No. 101-429 (1990). 

^^^The information in this section is derived from Funk, Close Enough for Government 
Work?— Using Informal Procedures for Imposing Administrative Penalties (Draft Report to the 
Administrative Conference, November 3, 1992). Among the statutes authorizing such processes 
are the Clean Water Act, Safe Drinking Water Act, Oil Pollution Act, and "Superfund." 

^^^Superfund Reauthorization: Judicial and Legal Issues, Oversight Hearings before the 
Subcommittee on Administrative Law and Governmental Relations of the House Judiciary 
Committee, 99th Cong., Ist Sess. 64 (1985), as cited by Funk, id., (draft report at 24). 



862 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Presiding officers are not AUs, but in most of the programs, they are 
attorneys. ^^ There is no prohibition against their having involvement in other 
enforcement activities, and in fact most of them are experienced enforcement 
attorneys. However, they are not to have had prior connection to the 
particular case. They are evaluated by their supervisors, who are generally the 
regional counsels. The position of presiding officer is not currently a full-time 
responsibility in any of the agencies. 

An opportunity for a hearing is available under all these non-APA civil 
penalty programs. Although the precise hearing procedures vary to some 
degree from one program to another, they all provide for notice to the 
defendant; in some cases interested members of the public are also allowed to 
participate. The presiding officers are responsible for conducting a hearing 
and issuing a recommended decision. The rules currently in force in EPA 
significantly limit the hearing officers' discretion, however. ^^^ Certain limited 
"information exchange" is permitted, as is the right to introduce testimony as 
to liability, but testimony on the amount of penalty is circumscribed. Not only 
may a presiding officer not hear a challenge to final state or EPA action, he or 
she may not dismiss a complaint. 

In the EPA program (and in the program administered by the Corps of 
Engineers), a presiding officer's recommended decision is sent to the Regional 
Administrator (or District Engineer) for final decision. ^^ There is no further 
administrative appeal. 

Although it remains to be seen whether these non-APA procedures will 
withstand challenge, it is noteworthy that this movement away from AUs is 
occurring in the enforcement area, an area traditionally associated with the 
expectation of substantial procedural protection. 



•'^^The Coast Guard "hearing officer" need not be an attorney. However, the hearing officer 
niay not be involved in other enforcement activities. 

^"56 Fed. Reg. 29,995 (1991)(consolidated proposed rules to be field-tested for a year). 
Discretion is not so limited at the Corps or Coast Guard. See 33 CFR §326 (1991) (Corps of 
Engineers); 33 CFR Subpart 1.07 (1991) (Coast Guard). 

^^%\ the Coast Guard program, the "hearing officer" issues a final decision that may be 
appealed. 



The Federal Administrative Judiciary 863 



D. Benefit Adjudication: Social Security and Veterans' 

Claims 

This section will briefly compare the benefit adjudication system at the 
Social Security Administration, which uses AUs, with that at the Department 
of Veterans Affairs, which does not.^^'' 

1. The Social Security Administration 

The Social Security Administration employs more than 850 AUs, almost 
three-quarters of all of the AUs in the federal government. These AUs 
annually hear more than 250,000 cases involving eligibility for social security 
and certain disability benefits. 

The adjudication process for these cases is generally as follows: Eligibility 
decisions are initially made by non-AU employees of the state disability 
determination services. An applicant whose claim for benefits is denied after 
reconsideration may appeal to an AU at the SSA. The hearing at SSA is a 
nonadversarial hearing in the sense that no one serves as an advocate for denial 
of the claim. About 80% of all claimants are represented by a lawyer or lay 
representative. The AU has the responsibility to ensure that the record is 
complete, as well as to make a decision on the claim. A dissatisfied claimant 
may appeal the AU's decision to the SSA Appeals Council, which hears 
appeals in three-member panels on a discretionary basis. The final agency 
decision is appealable to federal district court. 

The extremely large numbers of cases, as well as the substantial number of 
AUs making decisions, poses problems of consistency. SSA has also made a 
number of unsuccessful efforts to manage the workload of its AUs.'^ 

The history of SSA's use of AUs is discussed in Chapter II. 

2. The Department of Veterans Affairs 

There is a disability decision system of comparable magnitude to SSA that 
does not employ AUs. The Department of Veterans Affairs handles about 4.5 
million claims annually. The agency initially decides these cases by using 
more than 1,600 nonlawyer deciders serving on rating boards of two or three 
persons in regional offices. This group is comparable to the state officials who 
initially decide SSA disability cases. Obviously, the latter are less susceptible 
to management control by SSA because they are not directly employed by the 



^^''These procedures are set out in more detail at Chapter 11(E)(2) (SSA) and 11(E)(2) (DVA), 
supra. 

^^*See discussion Chapter V\(E){infra). 



864 Verkuil, Gifford, Koch, Pierce, and Lubbers 



agency. Thus, the DVA disability system has the additional advantage of more 
control over the initial application stage. 

Appeals from DVA initial decisions go to a regional office hearing officer 
who sits alone. There are about 42 such hearing officers throughout DVA. A 
law degree is not required to serve in this position. Appeals from the DVA 
regional offices go to the Board of Veterans Appeals (BVA), which sits in 
three-p>erson panels (two GS-15 lawyers, one GS-15 medically trained 
official). These panels are designated as nonadversary in nature, although 
hearings are sometimes held.^^ There are 66 BVA members and they render 
over 44,000 decisions annually.^ There is no judicial appeal on the merits 
from the BVA decisions, although the Court of Veterans Appeals has recently 
been installed as an Article I court of limited review.^' 

3. Benefit Adjudication Process Comparisons 

There are many comparisons and contrasts between SSA and DVA. First, 
they have in common a massive decision burden; second they must apply a 
complicated disability standard to myriad individual circumstances. They 
contrast in that the DVA deals with a designated portion of the public that 
Congress specifically wants to benefit, thus making it a more paternalistic 
system overall, whereas the SSA deals with the needs of the population as a 
whole. Another difference is that unlike social security claimants, veterans 
may be deemed partially disabled, thus limiting the incentive to appeal. 

There is no easy way to decide whether one system renders "better" or 
more correct decisions than the other. Both have elaborate internal 
mechanisms for achieving fair and efficient decisions. The further corrective 
of judicial review has been available more expansively over SSA than DVA 
decisions, however. When ALJ decisions are reversed in significant number 
by the district courts, ^^ a further control on decision quality exists that did not 
by definition apply to previously nonreviewable BVA decisions. BVA 



^^'^See 38 CFR §§3.102, 3.103 (1991). 

^^^Slatislics provided to author by DVA personnel, October 1991 . 

"^^See 38 U.S.C. §§4051-52 (1988); Pub. L. No. 100-687, 102 Stat. 4105, Veterans' 
Judicial Review Act of 1988. See also, Stichman, The Veterans' Judicial Review Act of J 988: 
Congress Introduces Courts and Attorneys to Veterans' Benefits Proceedings, 41 AD. L. Rev. 365 
(1989). 

^^Over the years the district courts have reversed/remanded substantial numbers of SSA 
decisions. For example, in 1984 and 1985 the reversal rale alone reached 50% of the cases 
brought to the district courts. By 1991, the reversal rate had fallen to around 20%. See Civil 
Actions Report SSA/OHA (Nov. 27, 1991). 



The Federal Administrative Judiciary 865 



decisions are currently reviewed by an Article I Court of Veterans Appeals, 
which has performed a quality control function since 1988.^ 

As a practical matter one can only conclude that the two decision systems 
are different, not better or worse. BVA members are not ALJs (although they 
would like to be*^) and they sit in panels. This latter consideration is one that 
is worthy of further study. The advantage of panels is that they tend to decide 
by consensus and therefore are more likely to reach a more correct (or less 
extreme) result. '°° This should be even more true in circumstances where one 
of the three panelists is medically trained, since medical issues are central to 
the disability determination. '°' 

A disadvantage of panels could be that they are more costly in terms of 
decision resources. The cost need not be triple since only one opinion is 
written and methods for achieving decisional efficiency are readily developed 
by the panelists.'^ Moreover, if one takes a rough cut at the number of cases 
decided by the BVA versus individual AUs at the Social Security 
Administration, the productivity issue seems to disappear. The 66 BVA 
members decide about 44,000 cases per year, an average of 666 cases per 
member annually (or 55 cases per BVA member monthly). '^^ This total 
compares with the AU "suggested" monthly average of 31 cases. '°^ 



^Veterans' Judicial Review Act of 1988, Pub. L. No. 100-687. 102 Stat. 4105 (1988). See 
Stichman, supra note 361 (1989). 

^VA members currently serve terms of 6 years and they have asked Congress to convert 
them to ALJs with lifetime tenure. See H.R. 3950, 102d Cong., 1st Sess. (1991). 

'^^^ research done on SSA decisionmaking, regression analysis showed that reformulating 
AUs in panels of three tended to cut off the tails of extreme grants or denials. See J. Mashaw, 
C. Goetz, F. Goodman, W. Schwartz, P. Verkuil & M. Carrow, Social Security Hearings and 
Appeals 21-27, 43-46 (1978). 

'°'The Court of Veterans Appeals appears to have limited the significance of the medically 
trained BVA panel member by requiring panels to refute medical evidence only through 
consideration of other expert medical evidence and not through general conclusions reached by 
the panels and their medically trained members. See Colvin v. Derwinski, No. 90-196 U.S. 
Court of Veterans Appeals (March 8, 1991). This ruling could well encourage the DVA to 
discontinue the use of medical members on panels and instead utilize them as experts. Discussion 
by author with DVA officials. But there is no evidence that the removal of medically trained 
members from BVA panels would lead to better decisions; in fact, the presence of these decision 
experts can give credibility to the decision process that is lacking in the SSA program. 

^^See Mashaw et al, supra note 365, at 43-45. 

'^'^The BVA denies benefits in about 75 percent of the cases it reviews, a denial rate 
significantly higher than SSA- ALJs who deny only about 35 percent. See note 76 supra. 

'^If one simply divides the number of AUs assigned into the cases decided in 1990 
(258,181 -i- 696) the average is approximately 371 cases per AU per year, or 30.9 per month. 
See SSA-OHA Key Work 10 and Indicators 1-2 (3Q 1991). If one recognizes, however, that 
many of the BVA cases involve appeals and not hearings, whereas all the SSA AU cases are at 



866 Verkuil, Gifford, Koch, Pierce, and Lubbers 



This comparison of two similar decider schemes suggests several 
conclusions. If AUs are not necessarily better or more efficient deciders than 
BVA members, what is their advantage in this context? When many similar 
cases have to be decided in circumstances where consistent outcomes are 
desirable, maximum independence of deciders may not be an institutional 
asset. 3^ It is at least arguable, in other words, that the great value of the AU- 
-that of decisional independence— is diminished in a system where caseload 
management must be the critical variable. This does not mean of course that 
ALJ independence is without value. Indeed, the case for decider qualifications 
varies with the kind of case to be decided. AU independence can be a crucial 
ingredient to fair decisionmaking in circumstances where institutional pressure 
may affect outcomes on the individual case. 



£. Adjudicating Claims Against the Government: Boards of 
Contract Appeals and the Claims Court 



1. Background on Boards of Contract Appeals (especially 
ASBCA) 



a. Purposes, Jurisdiction and Organization 

Congress intended the Boards of Contract Appeals (BCAs) to serve as 
quasi-judicial bodies providing expeditious and inexpensive resolution of 
contract disputes. There are a dozen agency boards with about 80 
administrative judges. The Armed Services Board of Contract Appeals 
(ASBCA) with 37 judges is the largest. BCAs provide an alternative forum to 
the United States Claims Court for contractors wishing to appeal final 
decisions rendered by agency contracting officers. 

The BCA's jurisdiction is derived from the Contract Disputes Act (CD A) 
of 1978.'^' Under the CD A, BCAs can now hear breach of contract claims as 



the hearing level then the discrepancy in caseload productivity may be understandable. The SSA 
also utilizes an appeals council that decides about 40,000 cases per year. See SSA/OHA 
Disability Filings and Appeals, FY 1990. 

^^''^is is of course a much debated issue. On one side are the representatives of claimants 
who believe fervently that judicial review of AU decisions is the best way to ensure correctness; 
on the other side is scholarly research that suggests an internally managed system is the best way 
to create overall norms of correctness or at least consistency. See J. Mashaw, BUREAUCRATIC 
Justtice-Managing Social Securfty Disabilfty Claims (1983). 

^■'Ul U.S.C. §§601-613. 



The Federal Administrative Judiciary 867 



well as those "arising under" a contract. Following the Federal Courts 
Improvement Act of 1982 and the Competition in Contracting Act of 1984, the 
Board now shares, for the most part, concurrent jurisdiction with the United 
States Claims Court. The Equal Access to Justice Act granted the BCAs 
jurisdiction to award attorneys fees; previously the Claims Court was the only 
forum in which such fees could be sought. 

With one exception, the BCAs litigate only post-award contract disputes. ^^ 
Bid protests, or award controversies, are generally litigated before the GAO, 
the Claims Court, and U.S. District Courts. 

The ASBCA resolves disputes for the Defense Department and several 
other agencies, including the Agency for International Development, the 
Department of Health and Human Services, NATO and the State Department. 

The Board consists of 37 administrative judges. There is one chair and 
three vice chairs. These positions are potentially successive 2-year terms. 
Appointment of the chair and vice chairs, according to the Charter, is made by 
the Under Secretary of Defense (Research and Engineering) and the Assistant 
Secretaries of the Military Departments responsible for procurement. There 
are eleven divisions, each with a division head. There are no part-time AJs, 
but retired AJs are sometimes brought on to hear appeals; they can draw up 
decisions but cannot sign on to a decision. 

The Board's Recorder and staff administer the docket and distribute the 
incoming correspondence and pleadings. Aside from the AJs, the only other 
attorneys providing legal assistance are four law clerks, the Recorder, Chief 
Counsel and three commissioners. There is also additional paralegal, 
secretary /legal staff assistant, and computer, docket and file support. 

Previously, the AJs monitored their own cases and ensured that appeals 
either proceeded in an orderly and timely fashion or were removed from the 
docket with or without prejudice, as appropriate. This responsibility has been 
delegated to the commissioners, and AJs are able to spend more time 
processing, hearing, and deciding appeals. 

b. Role of Under Secretary of Defense (Research and Engineering) 

The Under Secretary, with the Assistant Secretaries of the Military 
Departments responsible for procurement, appoints the chair and vice chair of 
the Board. The same individuals must also approve all methods of procedure 
and rules and regulations for the preparation and presentation of appeals and 
issuance of opinions adopted by the ASBCA. 



^^^e General Services Administration BCA does have jurisdiction over bid protests 
involving computer contract awards. 



868 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The ASBCA Charter states that the Board shall operate under general 
policies established or approved by the Under Secretary of Defense (Research 
and Engineering). The Chair is unaware of any specific policies that have any 
significant impact on the ASBCA. He stated that DOD leaves ASBCA alone. 

c. Procedures Employed 

There can be no jurisdiction for an appeal to the Board without a decision 
by the contracting officer. Either the government or the contractor can assert a 
claim, but only the contractor may appeal the contracting officer's decision to 
the Board. The appeal must be taken within 90 days from date of receipt to 
the decision or within 12 months if made to the Claims Court. Appeals are not 
bound by the contracting officer's findings and proceed de novo. 

Notice to the ASBCA Board that an appeal is to be taken is all that is 
needed to docket the appeal. The contractor's complaint follows within 30 
days, with the government's answer following within another 30 days. For 
claims above $50,000, the contractor must certify that the claim is made in 
good faith, the supporting data are accurate and the amount requested 
accurately reflects the contract adjustment for which it believes the government 
is liable. ^^ Parties can elect to have an appeal decided upon the record, but if 
either party requests a hearing the Board will grant the request. 

The contracting officer compiles an "appeals file" to which either party can 
add. Parties can contest the addition to the appeals file. Discovery can be 
made through interrogatories, depositions, requests for admissions, or other 
means. Parties are encouraged to engage in open discovery without significant 
board interaction. Administrative judges can compel discovery by exclusion of 
evidence and issuance of subpoenas.'^'* Although hearing procedures may 
appear informal, according to one commentator they "typically resemble 
practice in the Federal District Courts. ""^ 

The ASBCA Charter states that "[d]ecisions of the Board shall be by 
majority vote of the members of a division participating and the chair and a 
vice chair, unless the chair refers the appeal for decision by the senior deciding 



^^Contractors can elect an "accelerated" procedure for claims of $50,000 and below. There 
is a 180-day limit within which the Board must render a decision. Claims of $10,000 and below 
can follow an "expedited" procedure with a 120-day Hmit. See ASBCA, Rule 12. 

'^*rhe Board cannot issue a contempt order. According to Rule 21 "in the case of 
contumacy or refusal to obey a subpoena... the Board will apply to the Court through the Attorney 
General of the United States for an order requiring the person to appear before the Board... to 
give testimony or produce evidence or both." Failure to obey the order will be punishable by the 
Court. 

'^''^See Steven Schooner, Boards of Contract Appeals Disputes Procedures 3-43 (1989) 
(unpublished L.L.M. thesis, George Washington University). 



The Federal Administrative Judiciary 869 



group. "^''^ The senior deciding group consists of division heads and the chair 
and vice chair. '^ 

The Chair does not participate in appeals. ^^ One of the vice chairs sits in 
the Chair's place, but the Chair can appoint himself if necessary. 

d. Appeals from ASBCA Decisions 

A contractor may appeal a decision from the Claims Court or a board to the 
U.S. Court of Appeals for the Federal Circuit. The CD A permits the 
government to appeal adverse board decisions as well as adverse Claims Court 
decisions. The standard of review for board decisions is based on substantial 
evidence, while for Claims Court decisions it is a "clearly erroneous" standard. 
These standards for review reflect the traditional distinction between 
administrative and judicial review standards and are not significantly different 
in practical effect. ^^ 

Statistics regarding appeals to the Federal Circuit from the latest year 
available (fiscal year 1987) show that of 44 appeals disposed of, 21 were 
affirmed, 10 reversed, 2 vacated and 10 dismissed.^ If dismissals are equated 
with affirmances this amounts to an overall affirmance rate of 75 % . 

e. Statutory Basis for the Appointment of Administrative Judges and 
Hearing Examiners 

Board administrative judges were created by the CD A, under Title 41 of 
the U. S. Code, not under Title 5. However, CD A Section 607(b) states that 
members of agency boards (AJs) "shall be selected and appointed to serve in 
the same manner as administrative law judges appointed pursuant to Section 
3105 of Title 5, with an additional requirement that such members shall have 

^^^See Charter paragraph 4. 

^^Schooner refers to a study that prompted the removal of the ASBCA's Chair from 
participation in all board decisions and use of three-judge rather than five-judge decisions. 
Schooner p. 5-15. 

^"^Interview on January 15, 1992. 

^^See discussion in Section VI infra. 

Statistics provided by ASBCA Chair Williams. Chair Williams sUted that the fact that a 
vice chair participates in every appeal makes for a considerable degree of accuracy and 
consistency in Board decisions. He felt this was much preferable to the single judge decisions of 
the Claims Court. However, he could not say this difference was reflected in a lower reversal 
rate for ASBCA by the Appeals Court for the Federal Circuit. He believes that because of the 
wide jurisdiction of the Federal Circuit the judges have little experience in the area of contract 
disputes; he stated that several years ago the ASBCA did exhibit a better rate than the Claims 
Court, but added that the numbers could easily change because of the lack of contracts 
experience. 



870 Verkuil, Gifford, Koch, Pierce, and Lubbers 



had not fewer than five years experience in public contract law. " Board AJs 
are contract specialists, AUs are not. AJs are not subject to reassignment by 
the Office of Personnel Management.^' Board AJs are in a separate pay 
classifiation that provides for salaries that are slightly higher than the pay of 
comparable AUs.^ 

According to the Charter "[i]t shall be the duty and obligation of the 
members of the [ASBCA] to decide appeals on the record of the appeal to the 
best of their knowledge and ability in accordance with the law and regulation 
pertinent thereto. "^ 

Hearing examiners are also used by some boards to "conduct hearings, 
accept or exclude evidence, render or draft decisions, and interact with the 
litigants."^ Section 11(c) of the Preface to the ASBCA Rules state that a 
"[h]earing may be held by a designated member (Administrative Judge), or by 
a duly authorized examiner." The ASBCA uses them infrequently.^^ 

The ASBCA does not now employ ftiU-time hearing examiners. They are 
used very rarely (the Chair estimates six cases a year) and only on an ad hoc 
basis. The three commissioners and, occasionally, the Chief Counsel may be 
called upon to act as hearing examiners.^ 

f. Independence of BCA Administrative Judges 

According to the ASBCA Charter "the Board will be serviced by the 
Department of the Army for administrative support for its operations as 
required," This support includes budgeting, funding, fiscal control, manpower 
control and utilization, personnel administration, security administration, 



^^See Schooner, p. 1-28. The selection process for ASBCA Administrative Judges is fully 
described in Chapter V (D). 

^ee 5 U.S.C.A. §5372a(b) (1992). This pay schedule, enacted in 1990 (Pub. L. No. 101- 
509) at the same time as the new AU pay schedule, provides that rank and file members of BCAs 
are paid 94% of level IV of the Executive Schedule. Nonmanagement ALIs are paid from 65- 
90% of level IV, depending on seniority. 

^^Schooner states that "[b]oard judges often gain their experience as government counsel 
representing the agency before a board. The percentage of individuals leaving private practice to 
become members of BCAs remains small. Schooner also refers to a "major league/farm team' 
relationship between large and small boards in which AJs serve apprenticeships with smaller 
boards applying for positions at the larger boards. Schooner, p. 5-17. 

Schooner, p. 1-30. 

^^e Chair "appoints hearing examiners only to the extent that they will preside over 
hearings," typically "where the dispute presents routine legal and evidentiary issues and does not 
impose a monetary limit on the amount in dispute which can be heard by an appointed examiner." 
Schooner, p. 1-32. 

^^terview dated January 15, 1992. 



The Federal Administrative Judiciary 87 1 



supplies, and other administrative services. The Departments of the Army, 
Navy, Air Force and the Office of the Secretary of Defense will participate in 
financing the Board's operations on an equal basis. Requests are made by the 
Board as the need arises and considered by the Army. The Chair stated that no 
significant influence could be exerted on the Board through these purely 
administrative services.^ 

The Charter also specifies that the chair of the Board will furnish the 
Secretary of Defense and the Secretaries of the Military Departments an annual 
accounting of the Board's transactions and proceedings for the preceding fiscal 
year. Quarterly reports of appeals received, cases heard, opinions rendered, 
pending matters and other information are submitted to the Under Secretary of 
Defense (Research and Engineering) and the Assistant Secretaries of the 
Military Departments responsible for procurement. The Chair was unaware of 
what use these reports were put to, but speculated that they were a 
management tool, used to evaluate the efficiency of the Board and the need for 
any changes in rules or regulations. 

While contracting officers render decisions that the contractor appeals, the 
procuring agency or military department provides the legal personnel to litigate 
the appeal. Paragraph 5 of the ASBCA Charter limits AJ exposure to 
government trial attorneys, stating "it shall not be necessary for the Board, 
unless it otherwise desires, to communicate with more than one trial attorney 
in each of the departments or agencies concerning the preparation and 
presentation of the appeals and the obtaining of all records deemed by the 
Board to be pertinent thereto. " 

Conununications between litigants and the Board are dealt with in ASBCA 
Rule 34. It prohibits ex parte communications regarding any matter at issue in 
an appeal but does not exclude ex parte communications concerning the 
Board's administrative functions or procedures. 

2. Background on the United States Claims Court 

The United States Claims Court, an Article I court, was created to succeed 
the U.S. Court of Claims in 1982 by the Federal Courts Improvement Act.^ 
The Claims Court consists of 16 judges appointed by the President, with the 
advice and consent of the Senate.^ Each judge of the Claims Court is 
appointed for a term of 15 years, and may be reappointed. Judges on the 



^**Pub. L. No. 97-164, 96 Stat. 25 (1982) (codified throughout numerous sections of the 
United States Code). The Claims Court can trace its origin to that of the Court of Claims, which 
had been esUblished over ICX) years before. Act of Feb. 24, 1855, ch. 122, 10 Stat. 612. 

^8 U.S.C. 171(a). 



872 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Claims Court must be younger than 70. Judges may be removed during the 
term for which they are appointed only for incompetency, misconduct, neglect 
of duty, engaging in the practice of law, or physical or mental disability.^** 

The Court's judicial power with respect to the cases before it, except 
congressional references cases, is exercised by a single judge. ^^' 

The judge presiding over the case has full authority to disf>ose of the case. 
The decisions of the Court of Appeals for the Federal Circuit and those of its 
predecessor, the Court of Claims, are binding upon the Claims Court. Trials 
are conducted in accordance with the Federal Rules of Evidence, but are not 
required to follow the Federal Rules of Civil Procedure. ^^^ 

The Claims Court's jurisdiction primarily arises under the Tucker Act.^*^ 
Under that Act, the Claims Court's jurisdiction is limited to suits for claims of 
money against the government. Suits for money may fall under one of two 
forms: (1) plaintiff is seeking the return of funds mistakenly paid to the 
government; or (2) plaintiff is seeking payment of money that he or she 
contends the government owes and that the government refuses to pay.^^ In 
addition, the Claims Court possesses jurisdiction over any counterclaim or 
setoff asserted by the United States, not limited to those arising from the same 
transaction or to a claim that would fall under the Tucker Act.^^^ The 
government is not limited by any statute of limitations. 



^^SeelSV.S.C. 171, 172(a), 176(a), 178(b). 

^^'28 U.S.C. 174. Cases filed in the Claims Court are randomly assigned to a judge by the 
Clerk of the Court, with no consideration given to the subject matter of the case and the particular 
expertise of the judge. RUSCC 77(0- Exceptions are made for related cases, which are assigned 
to the judge who was assigned the earliest case. RUSCC 77(f). 

^^^8 U.S.C. §§2503(b), 2505. The Court adopted rules in October 1, 1982, which follow 
the Federal Rules of Civil Procedure but reflect the differences in jurisdiction. Miller, The New 
United States Claims Court, 32 Cleveland St. L. Rev. 7, 15 (1983-84). 

^^SeeliV.S.C. §1491. 

^'^Cohen, Claims for Money in the Claims Court, 40 Catholic U. L. Rev. 533, 534 (1991). 
The Tucker Act itself does not give rise to a substantive right to recover money from the 
government; instead, that right must be found in some other source of law, such as the 
Constitution, a statute, a regulation, or a contract with the government. United States v. Mitchell, 
463 U.S. 202, 216 (1983). 

^'^^See Continental Management, Inc. v. United States, 208 CI. Ct. 501, 527 F.2d 613 
(1975). 



The Federal Administrative Judiciary 



873 



The caseload of the Claims Court since its inception is as follows: ^*^ 





FILINGS 


DISPOSniONS 


PENDING 


FY 83 


779 


797 


1778 


FY 84 


672 


829 


1621 


FY 85 


774 


774 


1621 


FY 86 


813 


669 


1765 


FY 87 


815 


669 


1911 


FY 88 


763 


764 


1910 


FY 89 


717 


691 


1936 


FY 90 


787 


793 


1933 


FY 91 


732 


724 


1964 


Government contract cases as a percentage of filings 


are as follows: 




FILINGS 


DISPOSITIONS 


PENDING 




% of total 


% of total 


% of total 




filings 


dispositions 


pending 


FY 83 


29 


27 


26 


FY 84 


36 


32 


27 


FY 85 


39 


32 


31 


FY 86 


44 


37 


34 


FY 87 


42 


37 


36 


FY 88 


49 


37 


41 


FY 89 


47 


45 


42 


FY 90 


43 


45 


41 


FY 91 


48 


45 


42 



3. A Comparison of the Independence of BCA AJs and Court 
of Claims Judges 

A natural assumption might be that the judges of the Claims Court exercise 
more independence than administrative judges appointed to agency boards. ^^ 



^^^is chart excludes congressional reference cases. 

^'^Stephen Schooner refers to criticism that smaller BCAs exhibit an agency bias. The 
Agriculture Board in particular has drawn criticism for its inflexible and inconsistent position 
regarding the mailing address on notices of appeals (refusing to maintain jurisdiction over appeals 
mailed to contracting officer). Schooner, p. 1-15. 



874 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The General Accounting Office reviewed the ASBCA in an effort to 
determine whether bias existed.^* The ASBCA and General Services 
Administration disputed the GAO report's conclusion that legislation would be 
needed to protect ASBCA judges from ren[K)val by DOD.^ The GAO report 
was referred to by the Ninth Circuit in United States v. General Dynamics 
Corporation y^"^ in reversing a district court stay of a criminal prosecution of a 
defense contractor pending a referral under the primary jurisdiction doctrine, 
to the ASBCA for interpretation of the contract upon which the criminal 
charges hinged. 

The Appeals Court stated that the district court failed to note that the 
"ASBCA is intended to be independent of the Department of Defense. "*' For 
several reasons, the court decided, the CD A itself "forecloses any argument 
that Congress, in drafting the CDA, created a statute that grants regulatory 
authority to the boards of contract appeals or requires them to have primary 
jurisdiction over issues of contract interpretation arising in criminal 
litigation. "^'^ Thus, the courts viewed the BCA as having a narrower scope of 
authority than other administrative entities such as independent agencies.*^ 



^^The Armed Services Board of Contract Appeals Has Operated Independently. 
GAO/NSIAD-85-102, B-198620 (23 Sept. 1985). See Schooner, p. 1-16. GAO found that 
although the Board receives funding from the Army, Navy, Air Force, and the Defense Lxsgistics 
Agency, DOD exercised no centralized control over the Board's activities. GAO concluded that 
DOD had sufficiently divided oversight responsibility for the Board among its officials and 
agencies so that any attempt to apply pressure or impair the Board's independence would 
probably require concerted effort of several individuals within the Department of Defense. The 
private bar agreed that the Board decidei diiputei independent of external preiiure. GAO 
recommended that the Office of Personnel Management should select, appoint, and protect judges 
from removal in the same manner as ALJs. Although various bills have been introduced to 
implement these suggestions, no legislation has resulted. 

^^ According to the Federal Contracts Report (Vol. 44, No. 17, p. 799, BNA Inc., 
10/28/85). 

[t]hey contended that the Contract Disputes Act authorizes the Office of 
Personnel Marwgement to implement a system to protect ASBCA members. 
OPM, however, mainuins that because board members occupy attorney 
positions, they may be removed from their posts without a hearing before the 
Merit Systems Protection Board. Since a "lack of clarity" exists regarding 
removal provisions, GAO stood by its conclusion that further legislation is 
necessary if ASBCA members are to be insulated from agency control like 
administrative law judges. 

*»828 F.2d 1356 (9th Cir. 1987). 
*''828 F.2d 1364. 
*^828 F.2d 1364. 

^^See United States v. General Dynamics Corporation, 828 F.2d 1356, 1365 (9th Cir. 
1987). 



The Federal Administrative Judiciary 875 



Perhaps due to criticism from entities like GAO and to some extent the 
courts, the boards have formalized their procedures in an effort to make their 
AJs more independent. If one judges by the popularity of the ASBCA versus 
the Claims Court there seems to be little reason to disturb the present 
arrangement.*** Litigants seem to favor BCA AJs for their expertise in 
contracts litigation. By contrast, Claims Court judges need not have 
significant experience in contract law as a prerequisite to appointment to the 
bench, and they must concentrate on a greater variety of disciplines due to the 
wider jurisdiction of the Court. Administrative judges must have 5 years of 
government contracts experience and they continue to specialize in such 
matters once on the Board. The evidence seems to suggest that attorneys who 
specialize in government contracts prefer to litigate before the boards while 
attorneys that do not specialize prefer the Claims Court. 

Another distinction, which is reminiscent of the earlier discussion 
comparing VA and SSA decisionmaking,^^ is that while Claims Court 
decisions are issued by one judge, board decisions (other than expedited 
decisions that have no precedential effect) are collegial. These collegial 
decisions by contract specialists are said to lead to greater consistency and 
fewer surprises. ***• 

The BCA - Court of Claims judge comparison reveals a strong preference 
for specialized administrative judges rather than generalist Article I judges by 
those most familiar with the process. This preference does not mean of course 
that AUs, who can be similarly specialized by adjustments in the selection and 
appointment process, would not be preferable on the independence scale to the 
currently employed AJs. This seems to be the conclusion of GAO, which 
recommended that OPM administer the appointment process for BCA AJs~a 
result that would bring those deciders much closer to their counterpart AUs. 
If the AU selection process can be reformed to meet the needs of entities like 
ASBCA there seems to be little reason to continue the distinction between AJs 
and AUs in the BCA process. The virtues of enhanced independence and 
sustained specialization are achievable and desirable. 



^^Schooner refers to an American Bar Association study that found that "actions filed in the 
Claims Court represented a small fraction of the total numbers of appeals filed in the contract 
appeals boards during the same period... the ASBCA alone docketed over five times as many 
appeals as the Claims Court during the period studied." Schooner, p. 1-9. 

^^See Chapter III (D), supra. 

^'^See Schooner, p. 1-10. 



876 Verkuil, Gifford, Koch, Pierce, and Lubbers 



IV. Empirical Study of the Roles and Attitudes of 
the Federal Administrative Judiciary 

As discussed, administrative adjudicators in the federal system represent a 
wide range of formalized status and preside over adjudications of varying 
levels of judicialization. The formal break comes between AUs and other 
adjudicators, lumped here under the term administrative judges (AJs). The 
basic difference is that AUs are formally protected by the APA whereas other 
adjudicators are formally still part of the agency staff. We reviewed and 
compiled data on work environments and attitudes of both types of 
adjudicators so our recommendations reflect some understanding of both 
views. 



A. Methodology 

Of the many studies of ALJs, we found four empirical studies particularly 
helpful. Interestingly, each was undertaken at about the same time— the late 
1970s or early 1980s. While each study is somewhat dated, we believe their 
observations are still valuable. We also conducted our own study in an effort 
to compare current perceptions with many of those uncovered in the earlier 
studies. 

The most useful study was conducted by Paula Phillips Burger, entitled 
"Judges in Search of a Court: Characteristics, Functions, and Perceptions of 
Federal Administrative Law Judges." It is the result of a Ph.D. dissertation, 
but was undertaken with the cooperation of the Administrative Conference. 
Published in 1984, the data were collected in a survey conducted in 1978. 
Questionnaires were sent to 839 AUs, and about 50% (427) responded. This 
study is referred to as the "Burger Study." 

Another useful study, entitled "Validation of the Administrative Law Judge 
Examination," was conducted by Amiel Sharon for the Office of Personnel 
Management.'*'' It was completed in 1980. As its title suggests, its primary 
goal was to develop the basis for evaluation of the AU examination process. 
(The examination process, it must be noted, encompasses all the evaluative 
factors used to build the AU roster, including but not limited to written and 
oral examinations). Questionnaires were sent to 556 AUs and 51% returned 
completed questionnaires. 



^^^Office of Personnel Management, "Validation of the Administrative Law Judge 
Examination," Rep. 80-15 (June 1980). 



The Federal Ajdministrative Judiciary 877 



This study focused on the functions ALJs performed. A draft list of 110 
activities ALJs typically conducted was identified from Merritt Ruhlen's 
Manual for Administrative Law Judges (1974). Five panels of AUs revised 
the list to identify the knowledge, skills, abilities and other personal 
characteristics that might be used to measure satisfactory performance. Three 
statistics were developed for 141 activities: (1) the percentage of AUs who 
responded that they engaged in that activity; (2) the mean (average) perceived 
importance of the activity; and (3) the mean perceived level of judgment 
required to perform the activity. This study is referred to as the "Sharon 
Study." 

A third study that contributed some useful information was undertaken by 
the General Accounting Office (GAO), entitled "Survey of Administrative Law 
Operations."** It was completed and published in about 1978. The 
questionnaire was apparently sent to more than 800 ALls, and 747 responses 
were received. This study is referred to as the "GAO Study. " 

The fourth study was conducted by Donna Price Cofer, and reported in a 
book, Judges, Bureaucrats, and the Question of Independence: A Study of the 
Social Security Administration Hearing Process. The questionnaire was 
administered in 1982 and the results published in 1985. As the title suggests, 
the study focused on the Social Security Administration. It is valuable 
nonetheless for our more general survey because of the dominance of SSA 
adjudicators among AUs. At the time, about two-thirds of the AUs were 
employed by the SSA and now SSA AUs constitute about three-quarters of the 
AU pool. This information coordinates with our survey and the Burger study, 
which attempted, where significant, to distinguish the responses of SSA AUs 
from those of non-SSA AUs. This study is referred to as the "Cofer Study. " 

We endeavored to update much of the information gleaned from these four 
studies through our own survey. Our survey was based to a considerable 
extent on the Burger study. We benefitted from Dr. Burger's cooperation in 
recreating her survey for use in ours. However, we also sought information 
relevant to observations derived from the other studies. To these, we added 
some of our own questions. The results of our survey are referred to as the 
"1992 AU Survey." 

In our survey we categorized AUs along functional lines. We separated 
SSA AUs from the other AUs because SSA AUs so dominate the pool. 

We sent our survey to some 1,150 sitting AUs and 610 (about 53%) 
responded. We compiled the data in three different forms. First are the 
responses from all AUs surveyed [Appendix IV-A]. Second are the responses 



'**GAO, "Administralive Law Process: Better Management is Needed," FPCD-78-5 
(May 15, 1978) at App. 0. 



878 Verkuil, Gifford, Koch, Pierce, and Lubbers 



from SSA AUs [Appendix IV -B]. Third are the responses from non-SSA 
AUs. [Appendix I V-C]. 

Those holding the position of AU are not the only adjudicators in the 
federal system. Recently John Frye completed a study of some 2700 non-AU 
adjudicators for the Conference.*^ We included these other adjudicators in our 
study of the federal administrative judiciary and have relied on Frye's work to 
identify and describe the various non-AU adjudicators. 

For convenience, we refer to all these non-ALJ adjudicators as 
"administrative judges" or "AJs." There are no studies of AJs similar to those 
of AUs. Thus, to compare the information about work environment and 
attitudes that we had for AUs, we surveyed a selected sample of AJs. To the 
extent possible we attempted to match the basic questions asked in the four 
previous AU surveys and our own. This study is referred to as the "AJ 
Survey" [Appendix IV-D]. 

For this survey, we selected six agencies that employ a large number of 
AJs.^*° AJs from these agencies provided 264 responses of 380 requests, for a 
response rate of 69 % . 

Below are observations derived from the AU studies and the AJ study. 
These observations are grouped according to the following headings: profile 
and motivation, habits of office, techniques for presiding, performance 
evaluation of the process, relationship with the agency hierarchy, and attitudes 
towards the job. 



B. Profile and Motivation 

Background and Training 

Burger sunmiarized her findings regarding the background and training of 



AUs: 



The academic records of AUs offer no support to those who 
suggest that the best and the brightest move out of 
government service or cannot be enticed into it. In fact, the 



*^rye Report, supra note 3 . 

^'^^e selected agencies were the Board of Veterans Appeals, Equal Employment 
Opportunity Commission, Merit Systems Protection Board, Board of Patent Appeals and 
Interferences, Executive Office of Immigration Review, Defense Department Armed Services 
Board of Contract Appeals, Trademark Trial and Appeal Board (Trademark), and Nuclear 
Regulatory Commission Atomic Safety and Licensing Board Panel. 



The Federal Administrative Judiciary 879 



academic records of the ALJs in the survey population are 
rather in^jressive/'' 

This conclusion is based on her findings that more than 90% of ALJs 
graduated in the top half of their law school class, about 60% in the top 
quarter, and some 30% graduated in the top 10% /'^ About 20% of the AUs 
surveyed were members of law review,^'^ and some 20% graduated from one 
of 15 "prestige" law schools/'^ About the same percentages of federal district 
court judges are graduates from "prestige" law schools/'^ 

The 1992 ALJ Survey found that 93 % of the current ALJs graduated in the 
top half of their class. '*'^ Slightly lower percentages than reported in the earlier 
studies graduated in the top 10% (about 23%) and the top quarter (about 
48 %). About 17 % of the ALJs were members of law review/'^ 

By comparison, the AJ population surveyed has slightly less impressive 
credentials but still represent an impressive group. As with AUs, almost 90% 
of the AJs graduated in the top half and almost 50% graduated in the top 
quarter of their class. They were slightly below the AUs in the other 
categories. About 20% graduated in the top 10%;'*'* more than 11% were 
members of law review;**'^ and some 13% of the AJs graduated from the 
"prestige" law schools identified in the Burger Study. ''^ About a quarter of the 
AJs attended Washington area law schools, compared with about 15% of the 
AUs.^21 



^•'Burger at 109. 

^'^Burgerat 110. 

^'^Id. 

^'^Burger at 107. 

^'^Burger at 108. 

^'^1992 AU Survey, response 36. 

^'^1992 AU Survey, response 37. 

^**AJ Survey, response 3. 

^"aJ Survey, response 4. 

^^AJ Survey, response 2. Although such lists are always disputable, for purposes of 
comparison, we used the Carter Report list relied on by Dr. Burger. Those 15 prestige law 
schools are: Chicago, Columbia, Cornell, Duke Harvard, Michigan, Northwestern, NYU, 
Pennsylvania, Stanford, Texas, University of California at Berkeley, UCLA, Virginia, and Yale. 
Burger, chart at 107 n.c. 

^^'Compare AJ Survey, response 2 with Burger at 108. 



880 Verkudl, Gifford, Kcxth, Pierce, and Lubbers 



The Burger Study found that about one-third of the AUs undertook 
graduate training in addition to law school/^ The 1992 AU Survey found 
that almost 30% had such training in addition to law school/^ 

About one-third of the AJs have had some graduate training/^ Only about 
5% of the AJs did not attend law school and, hence, this training was usually 
in addition to law school/^ 

The Burger Study found that the typical AU was around 46 at the time of 
appointment and almost 70% had served less than 10 years, with only 7% 
serving more than 20 years. ''^ The GAO Study discovered that 59% were 
between 46 and 60, and 83% were between 41 and 65.''^^ Burger concluded 
that "our data showed little evidence of a group of gray eminence who had 
become calcified over long years of being on the bench. "''^ The 1992 AU 
Survey found that 94% of the current AUs are over 45.'*^ These are spread 
fairly evenly among 5 -year periods. Seventy percent have served less than 15 
years. "^^ 

The average age of a sitting AJ is 49. ''^' However, the range is fairly 
wide.'*^^ The youngest is 30 and the oldest is 74. About 60% of them are 
between 41 and 51. 

The experience of the AU population is more diverse than many believe. 
The Burger Study found that the division between those coming from private 
practice and those coming from government was about equal. ^^^ The GAO 
Study confirmed this diversity. It found that about one-third came from 
private practice and another third from an agency other than the one at which 
they served as an AU.^^ The 1992 AU Survey found that 36% would 
classify their primary professional experience as private practice. "^^^ 



''22Burger at 1 1 1 . 

423j992 AU Survey, response 38. (Since almost all attended law school, this training was in 
addition to law.) 

'*^AJ Survey, response 5. 
^^AJ Survey, response 2. 
^2«Burgerat 143. 
^^^GAO Study, response #4. 
"^Burger at 143. 
''^1992 AU Survey, response 5. 
''^1992 AU Survey, response 2. 
''^'AJ Survey, response 7. 
^^^tandard deviation of 8.7. 
^^^Burger, chart at 132. 
'^^GAO Study, response #18. 
^^^1992 AU Survey, response 25a. 



The Federal Administrative Judiciary 881 



While a large percentage of AUs came from other than the employing 
agency, Burger found that, when corrected for SSA, in which many AUs 
came from other agencies, somewhat more than half came from the employing 
agency.'*^ Those coming out of private practice had rarely appeared before 
either the employing agency or other federal agencies. '*^^ 

Regardless of their prior experience, Burger found that almost 80% of the 
AUs viewed their experience as "general trial /litigation. "^^ The GAO Study 
also found that about 80% had prior trial experience. '♦^^ About three-quarters 
of the AUs in that study considered trial experience very important with most 
of the remainder finding it somewhat important.'** The 1992 AU Survey 
found that almost 80% characterize their experience as litigation.'*^' Almost all 
consider trial experience important, with 72% considering it very important. ^^ 

Our AJ Survey asked more open-ended questions about the nature of the 
AJs' primary professional experience. Still, the results indicate considerable 
diversity. The answers fall into 57 categories. ''^^ Although some of these 
categories are quite similar, overall they demonstrate a significant range. The 
vast majority list legal experience. Other occupations represented are: 
engineer, scientist, physicist, university professor, and various types of 
medical professions. About 14% classify their experience as trial attorney, 
with another 7 % describing their experience as general practice. About 23 % 
call themselves former government attorneys, with several of the other 
categories also suggesting government experience. About 8 % had been either 
judges or examiners. There is not the same level of opinion among AJs that 
trial experience is important, and only 19% feel it is indispensable.'*^ 

Both in terms of years at the agency and in service as an AJ, our survey 
found a wide range. Three-quarters had been at the agency from 1 to 1 1 years, 
with fairly even distribution among those years. '*^^ Similarly, about three- 
quarters have been AJs for from 1 to 11 years with fairly even distribution 
among those years. *^ (The longest tenure was 31 years.) 



"burger, chart at 139. 
'*"Burger, chart at 141. 
^^Burger, chart at 133. 
^^^GAO Study, response #25. 
^*^GAO Study, response #26. 
'*^'1992 AU Survey, response 25b. 
"^2 1992 AU Survey, response 17h. 



^•'aJ Survey, response 9. 
^^AJ Survey, response 20h. 
**^AJ Survey, response 1 1 . 
'*^AJ Survey, response 1 1. 



882 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Any number of sources support the conclusion that the AU corps is 
overwhelmingly white and male. The 1992 AU Survey found that 94% are 
male and 6% female. *^^ It found that 94% are white, 3% Hispanic and the 
remaining 3% divided evenly among African- Americans, Asians, and Native 
Americans."*^ 

Our survey of the AJ population found that it is also predominantly white 
and male. About 80% are male and about 84% are white. ^^ Nine percent are 
African- American, 3% Hispanic, 3% Asian and 1% Native American. 

The Burger Study suggests considerable diversity in social status and other 
areas. Moreover, the AU population represents considerable social mobility. 
Burger found that while only a quarter came from blue collar backgrounds, in 
over three-quarters of their childhood homes, the primary wage earner did not 
have a college degree and over one-third did not have a high school diploma.^* 
Protestants were underrepresented as compared to the population as a whole. ''^' 
Political party affiliations show that 46% were Democratic, 22% Republican 
and 21% Independent, with some small percentage claiming no preference. ^^^ 
Regardless, AUs are less political than federal judges. '*^^ The vast majority 
saw themselves as moderate but the entire spectrum was represented.^^ 
Neither of our recent surveys sought this type of information. 

The GAO Study found that about three-quarters of the AUs had the 
advantage of the veterans' preference. ^^ That percentage, however, is 
decreasing. The 1992 AU Survey found that 65% received veterans' 
preference for their appointment as AUs.^^ We found that about 18% of the 
AJs received veterans' preference for their appointment as an AJ.^^^ 

2. Motivation 

The first insight into AU motivation comes from those factors that 
motivated the AUs to seek their offices. Burger inquired into such factors.*^ 



^^■'1992 AU Survey, response 26. 



***1992 AU Survey, response 27. Compare actual statistics, infra . Chapter V (c)(1). 

'"^AJ Survey, response 5. 

^^urger, chart at 113 & 115. 

*^' Burger, chart at 117. 

'*^^Burger, chart at 121. 

^"Burger, at 122-126. 

^^Burger, chart at 128. 

*^^GAO Study, response #20. 

*^1992 AU Survey, response 28. 

AJ Survey, response 10. 
^^Burger, chart at 78. 



The Federal Administrative Judiciary 883 



She found that almost all rated independence as important, with 87 % rating it 
as very important and almost 12% rating it as moderately important. AUs 
rated the challenge of the job second, with about 95 % finding that either very 
important or moderately in:^>ortant. The next two factors were salary and 
prestige, both of which were rated very important or moderately important by 
more than 80% of the AUs. Government employment and perquisites were 
somewhat of a factor. Most rated desire for advancement within the agency 
and travel as not important. 

The 1992 AU Survey found that 89% of the AUs rate independence as a 
very important factor with most of the remainder rating it important.*^ 
Almost all also rate challenge of the job as at least important.^ Most rate 
salary, prestige and enjoyment of government service as important.^' The 
perquisites of office are considered relatively unimportant.^^ 

The views of AJs are much the same. About 81 % rate independence of the 
job as very important and 97% rate it as at least moderately important. ^^ 
Challenge of the job also rates second with AJs, with about 80% seeing it as 
very important and the remaining 20% as moderately important.^ Only about 
32% think salary very important but 88% think salary is at least moderately 
important."^ Similarly, only 25% think prestige very important in seeking to 
become an AJ, but 83% rank it at least moderately important.'^ 

In the AJ Survey, we also asked the AJs to rank the three most important 
factors in their decision to become an AJ.^^ Independence of the job ranks 
first with 54% of the AJs and within the top three for 89%. Challenge of the 
job ranks first with only 31 % of the AJs but is ranked within the top three by 
89 % . Salary ranks first with only 5 % and in the top three with 43 % . Prestige 
ranks first with only 1.2% and in the top three for 21 %. Four AJs rank policy 
goals and only one ranks having influence as first. Only 10% ranked policy 
goals and having influence among the first three. 

Particularly interesting, most AUs in the Burger Study rated commitment 
to policy goals and desire to have influence as not important, with most of the 
remainder rating those factors as only moderately important.'^ Most AUs in 

^^^1992 AU Survey, response 20a. 
^1992 AU Survey, response 20b. 
^'1992 AU Survey, response 20c-€. 
^^1992 AU Survey, response 20f. 
^■^AJ Survey, response 21a. 
^*^AJ Survey, response 21b. 
^*^AJ Survey, response 21c. 
^*^AJ Survey, response 2 Id. 
^^AJ Survey, response 21 . 
^**Burger, chart at 78. 



884 Verkuil, Gifford, Koch, Pierce, and Lubbers 



the 1992 AU Survey rate influence and policy goals as unimportant, with most 
of the remainder rating those factors as only somewhat important.^ Similarly, 
over half of the AJs rate these two as of little or no importance, with most of 
the remainder ratiQg them as only moderately important/^ These responses 
suggest an inherent neutrality and a commitment to individual justice rather 
than carrying forward a personal social agenda. 

Burger's findings with respect to AUs' perception of their job confirm this 
observation.*^' The AUs did not see either educating the public or making 
agency policy as important parts of their jobs. The 1992 AU Survey found 
that more than 91 % consider making policy no part of their job and two-thirds 
consider educating the public not part of their job. '•^ 

On the other hand, almost all conceive their function as including 
factfinding, making credibility determinations and guaranteeing due process.*"^ 
A very large percentage find their job to a great extent involves "applying" 
agency policy and exercising substantive expertise.'*^'' Interpreting statutes is 
considered at least moderately important by almost 90% of the AUs.*^^ 
Factors that might be considered somewhat less policy neutral—balancing 
interests, protecting the public interest and clarifying agency policy—receive 
rather mixed response, but few find these very important. *^^ Burger's findings 
were similar. "^^ Obviously, some AUs, perhaps varying by agency, perceive 
this limited policy involvement as marginally part of their jobs. 

Our AJ survey produced similar results."*^ Almost all AJs find that their 
job to a great extent involves factfinding and guaranteeing due process and 
about 85% consider that their job, making credibility determinations. About 
three-quarters find that their job to a great extent involves applying agency 
policies and regulations, applying substantive expertise, and interpreting 
statutes. Almost 90% find that bringing efficiency to the agency proceedings 
is either a large part or some part of their job. Some 86% list factfinding and 
76% list guaranteeing due process among the top three most important 
functions. 



**'l992 AU Survey, response 20g & h. 
*^AJ Survey, response 21g & h. 
''^'Burger, chart at 289. 
^^1992 AU Survey, response 9i & j. 
'''^1992 AU Survey, response 9a-c. 
^''''1992 AU Survey, response 9d & e. 
^''^1992 AU Survey, response 9f. 
^■'^1992 AU Survey, response 9h, k & I. 



^'^Burger, chart at 289. 
*^AJ Survey, response 15. 



The Federal Administrative Judiciary 885 



AJs also do not consider making agency policy as part of their job/^ 
Eighty-six percent said that their job does not include making policy to a 
significant extent, and most of the rest said their job includes policymaking 
only to some extent. On the other hand, almost 80% consider that their job, 
to a great extent involves "applying" agency policy, and the rest think that 
their job includes that function to some extent. About one-third think that 
their job to a great extent involves clarifying agency policy, and another third 
think it does to some extent. They divide about evenly among the three 
possibilities (great extent, some extent, no significant extent) on whether 
balancing interests is part of their job. About half think that their job does not 
involve protecting the public interest. 

Like AUs then, AJs see their job as involving adjudicating the individual 
disputes before them as impartially, fairly and efficiently as they can. While 
they recognize that they should apply agency policy, they do not believe they 
should engage in policy-type functions in their individual adjudications. In 
sum, they see their function in terms similar to any other judge. 

The GAO Study provides insights into the specific factors of the job that 
motivate AUs. It asked what the AUs sought to gain from "superior 
performance."^*' Superior performance was defined as "rendering the best 
possible decisions in the shortest period of time." Not surprisingly, over half 
found compensation as extremely desirable, with almost all the rest finding it 
desirable. Almost all found office surroundings a desirable benefit from 
superior performance. 

Less tangible "rewards" also seem to motivate AUs, however.^' Almost 
all found desirable the respect of their peers, additional authority and a feeling 
of contribution to the body of administrative law. They also appeared 
motivated by the hope that superior performance would avoid frequent 
modification of their decisions and pressure from agency officials. They did 
not seem to be motivated by potential envy of their peers. 

The GAO Study also attempted to discover whether the AUs thought these 
benefits accrued from superior performance.'*^ It appears that they did not 
believe the tangible benefits were realized. They did feel more often rewarded 
in terms of the perceived intangible benefits of superior performance. 

The GAO Study also attempted to measure the negative impact of certain 
aspects of the job.'*^^ AUs almost never worried about being asked to do 
things that were against their better judgment. About 80% responded that they 



^^AJ Survey, response 15. 
^^^GAO Study, response #45 part 2. 
^'GAO Study, response #45 part 2. 
'•^GAO Study, response #45 part 1 . 
^•^GAO Study, response #44. 



886 Verkuil, Gifford, Koch, Pierce, and Lubbers 



were never or rarely asked to do so; whereas about 5% said they were often or 
usually asked to do so. 

The 1992 ALT Survey, however, shows that 34% now believe they are 
being asked to do things that are against their better judgment, with 12% being 
frequently asked to do so.'*^ Many of these may be in SSA. Thirteen percent 
of the SSA AUs report that they are frequently asked to do things against their 
better judgment and another 29% are occasionally asked to do so.^ Only 6% 
of the non-SSA ALJs report that they are frequently asked to do things against 
their better judgment, with another 13% saying they are asked to do so 
occasionally.^** 

Responses from the AJs were more positive than those from the AUs. 
About three-quarters reported that they are never or rarely asked do things in 
their work that are against their better judgment.'*^ Most of the rest said they 
are only sometimes asked to do so and only about 4% said they are often or 
usually asked to do so. 

ALJs generally do not feel they have too little authority to carry out their 
ftmctions nor that too much review interferes with their job, but 22% 
frequently think so and another 27% occasionally do.^ Some 29% find that 
their caseload frequently interferes with the quality of their work and another 
40% believe it occasionally does so.'^ These percentages are higher for SSA 
AUs.^*' 

The GAO Study received similar responses. ^^' ALJs in that study did not 
feel that they had too little authority. About one-quarter responded that the 
amount of work often interferes with quality and almost 40% responded that 
this sometimes occurs. 

About 60% of the AJs feel that they never or rarely have too little authority 
to carry out their work and another quarter only sometimes feel a lack of 
authority. '*'2 However, almost three-quarters feel that the amount of work may 
interfere with quality at least sometimes. ^'^ And more than two-thirds feel thai 
the workload is too heavy. '**' 

^1992 AU Survey, response 15e. 

^^1992 AU Survey, SSA only, response 15e. 

^**1992 AU Survey, non-SSA, response 15e. 

^^AJ Survey, response 27e. 

^^1992 AU Survey, response 15b. 

^1992 AU Survey, response 15a. 

^*^1992 AU Survey, SSA only, response 15a. 

^''GAO Study, response #44-2 & #44-4. 

^^AJ Survey, response 27b. 

^'^AJ Survey, response 27a. 

^'^AJ Survey, response 27h. 



The Federal Administrative Judiciary 887 



The GAO Study found that about 85% of AUs said that "on occasion" 
they felt they were not fully qualified to handle their jobs, with another 11 % 
having these feelings sometimes or rather often /'^ In the 1992 AU Survey, 
no AUs report that they frequently feel they are unqualified and only 2% 
reported that they occasionally have those feelings/*^ It is difficult to interpret 
this change of attitude. 

Most AJs also feel they are qualified to do their job /^ About 11% rarely 
or sometimes feel they are not qualified. 

Burger found that the AUs were generally satisfied with their job. ^* Over 
97% were satisfied with their position and duties and over three-quarters of 
these were very satisfied. About 94% were satisfied with the substantive area 
of law and 77% with the conditions of employment. Burger also found that, 
"The 38 percent of judges at the SSA who expressed dissatisfaction... with the 
conditions of employment depressed the overall figure. "^^ 

The 1992 AU Survey found that only 65% report that they are very 
satisfied with their job but the remainder said they are somewhat satisfied.^ 
Almost all are satisfied with nature of their duties, with 81% being very 
satisfied.*' Almost all are satisfied with the substantive area of the law.^ 
However, over half are either not satisfied or only somewhat satisfied with the 
conditions of employment.*^ The responses for SSA AUs vary little from the 
overall responses.** 

AJs seemed to be more satisfied with their jobs. *^ Ninety-nine percent are 
satisfied with their duties, with 77% being very satisfied. Almost 100% are 
satisfied with the substantive area of law, with 75% very satisfied. About 
80% are satisfied with conditions of employment but only 34% are very 
satisfied. In sum, 97% are satisfied overall. 



*'^GAO Study, response #44-7. 

^^1992 ALJ Survey, response 15g. 

*^AJ Survey, response 21 g. 

^^Burger, at 86-87. 

^^urger, at 87. 

*°I992 ALJ Survey, response 22d. 

*'1992 AU Survey, response 22a. 

*2l992 ALJ Survey, response 22c. 

*^1992 AU Survey, response 22b. 

**1992 AU Survey, SSA only, response 22. 

*^AJ Survey, response 25. 



888 Verkuil, Gifford, Koch, Perce, and Lubbers 



3. Qualifications and Selection 

The performance of adjudicators depends on their qualifications and the 
extent to which the selection process seeks those with the relevant 
qualifications. Therefore it is useful to understand what adjudicators 
themselves perceive to be crucial qualifications. 

Burger asked the AUs to rank 14 characteristics as indispensable, 
important or of little or no importance.^ Her study reveals that almost all 
AUs perceive integrity, judicial temperament, and analytical skills as 
indispensable.^^ A majority would add writing ability. She noted some 
surprise that a majority also rated appearance and personality values as 
important. Indeed, 83 % rated a sense of humor as at least important. 

The results of the 1992 AU Survey were much the same. Almost all 
current ALJs rate integrity, judicial temperament, and analytical skills as very 
important. ^°* Almost all would rate writing ability as at least important. ^^'^ 
They also rate appearance and sense of humor as important. ^'° 

Our AJ Study showed that almost all AJs rate integrity, analytical skills and 
reasoning ability as indispensable.^" They also all rate writing ability as at 
least important, with 73% finding it indispensable. About 70% rate public 
speaking ability as at least important but only 19% find it indispensable.^'^ 
Almost all rate judicial temperament as at least important. More than 80% 
rate neat personal appearance and about 70 % rate sense of humor as at least 
important. ^'^ 

The GAO Study showed that ALJs considered experience important. 
Almost 80% thought that 7 years' experience was merely adequate, with about 
17% fmding even that experience insufficient. ^''' Almost all felt that 2 years' 
experience as a trial lawyer or in administrative law was no better than 



^^'^The qualifications were: integrity, judicial temperament, analytical skill, writing ability, 
trial experience, personal appearance, sense of humor, administrative law experience, substantive 
experience, public speaking ability, technical expertise, law school honors, bar association 
participation, and political experience. 

^^Burger, chart at 63. 

^1992 AU Survey, response 17a, d & I. 

^1992 AU Survey, response 17j. 

^■°1992 AU Survey, response 17f & g. 

^''AJ Survey, response 20. 

^'^AI Survey, response 20k. 

^'^AJ Survey, response 20f & g. 

^'"GAO Study, response #21. 



The Federal Administrative Judiciary 889 



adequate. ^'^ About 60% considered some experience as a staff attorney either 
very important or somewhat important, ^'^ 

Three-quarters of those responding to the 1992 ALJ Survey consider 
experience practicing administrative law important. ^'^ About 80% of the AJs 
consider experience practicing administrative law as at least important but only 
about 20% consider it indispensable. ^'^ 

The GAO Study showed that 73 % of the AUs considered trial experience 
very important, while most of the rest considered it somewhat important.^'' 
Burger found that about 95 % of the AUs rated trial experience specifically as 
at least important, with over half considering it indispensable.^^ Almost all 
those responding to the 1992 AU Survey consider trial experience as at least 
important, with 72% finding it very important."' About three-quarters of the 
AJs rate trial experience as at least important, but only 19% consider it 
indispensable.^^ 

The results of the Burger Study as to the AUs' view of the value of 
substantive or technical expertise are somewhat ambiguous. ^^ A very small 
percentage viewed such expertise as indispensable but about one-half viewed 
these as important. On the other hand, one-third found substantive experience 
unimportant and more than half found technical expertise unimportant. Most 
current AUs consider experience in the substantive area important, with more 
than one-quarter finding it very important. ^^ Most also consider technical 
expertise important, with 24% finding it very important. ^^ One would expect 
considerable difference among agencies but still these views question the 
general importance of specifically relevant experience and expertise. 

Almost 90% of the AJs consider experience in the substantive area as at 
least important but only one-third find it indispensable.^^ About 80% 
consider technical expertise as at least important and about one-quarter find it 
indispensable."^ 

^'^GAO Study, response #22. 
^'^GAO Study, response #27. 
^•''1992 AU Survey, response 17c. 
^'*AJ Survey, response 20c. 
^'^GAO Study, response #26. 
^^urger, chart at 63. 
"'1992 AU Survey, response 17h. 
^^AJ Survey, response 20h. 
^^Burger, chart at 63. 
^^1992 AU Survey, response 17e. 
^^1992 AU Survey, response 17i. 
^^AJ Survey, response 20e. 
^^^AJ Survey, response 20i. 



890 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The GAO Study inquired into the AUs' attitudes towards the selection 
criteria in place at that time.^^ About three-quarters believed that trial 
experience contributed most to selection. ^^ After that, most thought that the 
oral panel, written examination and recommendations had the most effect. 
About 65% thought that it was at least somewhat likely that the then-current 
appointment process favored government attorneys. ^^ 

Most current AUs consider that the selection criteria are relevant to their 
duties."' Only a little more than half, however, find them very relevant. 
While several parts of the examination are considered burdensome, only the 
OPM/CSC supplementary qualifications statement is uniformly considered 
burdensome. "2 

Over 60% of the AJs feel that the selection criteria they faced have the 
same relevance to their position as that of AUs."^ Interestingly, however, 
almost 30 % think that their selection criteria are more relevant than those used 
for AUs. 

The 1992 AU Survey found that almost three-quarters of the AUs feel that 
mediocrity among AUs is a problem, but only 17% think it is a serious 
problem. ^^ Most AJs do not think mediocrity of AJs is a serious problem, but 
a third would at least agree it is a problem."^ 



C. Habits of Office 



1. Preparation 

AUs seem fairly conscientious in keeping up with the various authorities 
that might affect their decisions. The Burger Study found that almost all AUs 
read relevant court decisions and the fmal decisions of their agencies. ^^ More 
than 70% read court decisions frequently and over 60% read fmal decisions of 
their agency frequently. In addition, two-thirds read commercial services and 



^^GAO Study, response #17. 
^^GAO Study, response #17-6. 
^^GAO Study, response #24. 
"'1992 AU Survey, response 19. 
"^1992 AU Survey, response 18. 
"•'aJ Survey, response 28g. 
^^1992 AU Survey, response 23g. 
"^AJ Survey, response 26g. 
^^urger, chart at 224. 



The Federal Administrative Judiciary 89 1 



half of those did so frequently. Two-thirds also read opinions of other AUs 
and half of those did so frequently. 

Sharon also reported a high level of conscientiousness. He found that 
almost 90% discussed issues with other AUs"^ and participated in professional 
associations of ALJs. Almost all reported maintaining professional expertise 
by reading books and journals, and participating in continuing legal 
education. ^^ Almost all also attended seminars and professional meetings.^^^ 

The 1992 AU Survey found some dropoff in background preparation. Of 
the current AUs, 54% frequently read relevant court opinions and another 
41% occasionally do so.^^ Fifty-four percent frequently read final agency 
decisions and 33% read those decisions on occasion.^'*' A little more than half 
read commercial services, with only 16% frequently doing so.^- About two- 
thirds read decisions of other AUs, with 26% doing so frequently."^ Less 
than half consult with other AUs.^ 

Our study found that many AJs engage in background preparation. Almost 
all read final agency decisions frequently."^ About 90% read decisions of 
other presiding officers."* And almost all read federal court decisions at least 
occasionally, with over three-quarters reading them frequently."^ Over 80% 
use commercial services or industry publications at least occasionally."* 

Of the sources of information. Burger found that AUs considered 
commercial services, independent research and law review articles as the three 
most important sources of information."^ They considered memoranda from 
agency counsel, communications from the chief AU and research by law 
clerks to be the least important. 



^^^Sharon, response #122. 
^^Sharon, response #125. 
^^'Sharon, response #126. 
"^1992 AU Survey, response 10a. 
"'1992 AU Survey, response 10b. 
"2 1992 AU Survey, response lOd. 
"^1992 AU Survey, response 10a. 
"^1992 AU Survey, response lOf & g. 
"^AJ Survey, response 13b. 
"*AJ Survey, response 13a. 
"^AJ Survey, response 13c. 
"*AJ Survey, response 13d. 
"'Buf:ger, chart at 247. 



892 Verkuil, Gifford, Koch, Pierce, and Lubbers 



2. The Integrity of the Office 

Burger found a good deal of disagreement among AUs as to the scope of 
permissible activities outside the adjudicative process.^* Most thought 
working for procedural change was appropriate and almost two-thirds found 
lobbying Congress and suggesting policy changes to be appropriate.^^' Most 
thought talking to the media during a hearing was inappropriate and almost 
two-thirds thought talking to the media after the final decision was 
inappropriate. They split almost evenly among the three choices—appropriate, 
questionable and inappropriate—regarding social contacts with the agency staff 
or the private bar. 

The 1992 AU Survey found some consensus on appropriate conduct in 
several areas. Most think suggesting procedural change and working for 
changes in substantive policy is appropriate.^" Most think lobbying Congress 
on behalf of AUs is appropriate. ^^^ About three-quarters think suggesting 
proceedings, investigations, or study is appropriate.^^ Almost all think talking 
to the media about the case, during, after or after the final decision is 
inappropriate.^" Almost none talk to the media about their decisions. ^^ Most 
think social contacts with agency staff or private attorneys are inappropriate, 
but many think this practice is somewhat appropriate."^ 

AJs agree with AUs concerning permissible activities outside the 
adjudicative process. Almost 90% think suggesting procedural changes to the 
agency and about 70% think suggesting policy changes to the agency are at 
least appropriate.^^ About three-quarters think suggesting other investigations 
or studies to the agency is at least sometimes appropriate. Some 70% consider 
lobbying Congress on behalf of AJs is at least sometimes appropriate.'^ 
Almost all consider that talking to the media during the hearing is 
inappropriate.'**' About three-quarters think talking to the media after the case 
is over is still inappropriate. '^^ 



"burger at 323. 
"'Burger, chart at 324. 
'"1992 AU Survey, response 24g & h. 
"^1992 AU Survey, response 24i. 
"^1992 AU Survey, response 24j. 
'"1992 AU Survey, response 24b-d. 
"**1992 AU Survey, response 13b. 
"''1992 AU Survey, response 24e & f. 
"*AJ Survey, response 18g, h & j. 
"^AJ Survey, response 18i. 
'^AJ Survey, response 18b. 
'*'AJ Survey, response 18c & d. 



The Federal Administrative Judiciary 893 



Despite some disagreement as to what activities are permissible for AUs 
per se, AUs see themselves as judges and apparently conduct themselves in 
accordance with that perception. ^^ To test the latter assertion, Burger 
explored activities at the post-decisional stages in the administrative 
adjudicative process. She reasoned: 

[I]f AUs saw themselves as judges, rather than 
administrators, their involvement in the adjudicative process 
would be severely constrained once their initial or 
recommended decision had been completed. On the other 
hand, if AUs adhered to a bureaucratic model, we should 
expect that their involvement after the hearing and decision 
stage would be greater and would follow less formal, 
structured routes. ^^ 

She concluded from the evidence: "The judicial role orientation appears 
generally respected by both agency officials and the AUs themselves."^ 

The 1992 AU Survey found that AUs do not participate in the decision 
after the hearing. Few participate in oral argument, talk to agency staff, help 
prepare documents or observe oral argument.^ A very few supply written 
clarification and study briefs. ^^ The only post-hearing activity that a 
significant number engage in is assisting in writing the final agency decision. ^^ 

Almost all AUs in the Burger Study also reported that they did not 
participate after their decision.^ Sharon generally confirmed this behavior. 
He found that only 16% of the AUs assisted in writing the fmal agency 
decision.^ Burger also found that AUs rarely participated in such actions as 
the administrative appeals process or decision. ^^ Some studied the appellate 
briefs but only "for educational purposes. "^^' They avoided further contact 
with a case once it left their jurisdiction. 

AJ conduct after issuing their decisions is similarly isolated. Almost all 
responded that they do not participate in oral argument or talk to news 



^^1992 AU Survey, response 21a. 

^Burger at 319-320. 

^Burger at 320. 

^1992 AU Survey, response 13a, d, f, g. 

^1992 AU Survey, response 13c & e. 

^"^1992 AU Survey, response 13h. 

^^^Burger, chart at 321. 

^*^Sharon, response #120. 

^^urger, chart at 321. 



"' Burger at 323. 



894 Verkuil, Gifford, Koch, Pierce, and Lubbers 



media. ^^ More than 90% reported that they rarely or never supply written 
clarification, talk with agency staff, help prepare documents, or observe oral 
argument. About a quarter reported that they frequently assist in writing the 
final opinion. ^^ About a third at least occasionally study appeal briefs but 
only 8% frequently did so.^^'' 

ALJs' social and professional contacts also support the claim that they not 
only perceive themselves in a judicial role but behave under the constraints of 
that perception. Burger found that very few AUs had agency contacts outside 
their own office. ^^^ Indeed, whereas almost 70% had office contacts with 
other AUs in their office, social contacts were occasional or not at all. Over 
90% reported that they did not have even office contacts with agency counsel 
or the head of the agency."^ The 1992 ALJ Survey, however, found that 
almost half talk to agency staff about cases, with 22% frequently doing so.^^ 

Burger found that contacts outside the agency were similarly constrained. 
Although some AUs reported office contacts with private attorneys, over 80% 
reported no social contact with private attorneys, and the remainder reported 
only occasional such contacts. ^^ 

The 1992 AU Survey found that current AUs rarely communicate about 
their cases outside the agency, with only about 15% doing so even 
occasionally.^^ However, about three-quarters of the current AUs reported 
attending professional meetings and seminars, with only 8% doing so 
frequently.^* More than a third talk to the private bar about the agency, with 
only 3% doing so frequently.^' 

AJs apparently feel under similar constraints. Over half rarely or never 
communicate with the staff about a case.^ Yet, 29% occasionally have such 
communications and 14% have them frequently. More than 90% rarely or 
never communicate about their cases with those outside the agency. ^^ 

Many AJs engage in more general professional contacts. Almost half at 
least occasionally talk to members of the private bar about agency 



AJ Survey, response 17a-d; f-g. 
^^AJ Survey, response 17h. 
^^''AJ Survey, response 17e. 
^''^Burger, chart ai 333. 
^''^urger, chart at 333 . 
^^1992 AU Survey, response lOi. 
^''^Burger, chart at 333. 
^'''1992 AU Survey, response lOj. 
^1992 AU Survey, response lOo. 
^'1992 AU Survey, response 10m. 
^*^AJ Survey, response 13i. 
^^AJ Survey, response 13j. 



The Federal Administrative Judiciary 895 



procedures.^ Over 90% report attending professional meetings or seminars, 
although only 20% do so frequently.^ 

Most AJs think that social contacts with agency attorneys or private 
attorneys is at best only sometimes appropriate and about 40% think that such 
contacts are inappropriate.^ Those in the EOIR are particularly adamant 
about their distance from the immigration bar. (Their strong expression was 
no doubt generated by a mistake in our characterization of them on our survey 
form.) 

While the isolation described above is the result of informal constraints, 
some external communication could constitute illegal ex parte conmiunication. 
APA §557(d) contains rather detailed prohibitions against such 
communications for AUs. 

It appears that AUs are rarely approached through ex parte 
communication. Burger found that over 80 % of the non-SS A AUs reported 
that such efforts occurred rarely if ever.^^ The SSA AUs reported a slightly 
higher incidence of such efforts, but still almost 70% reported that they 
occurred rarely or not at all. Sharon found that 67% of the AUs reported 
efforts to disclose and otherwise take appropriate steps regarding ex parte 
communication. ^ 

While AJs' proceedings might not technically be controlled by APA 
§557(d), only 12% of the AJs reported that they are occasionally approached 
through ex parte conmiunications and only 1% reported they are frequently 
approached. ^^^ 

3. Administrative Responsibilities 

The Sharon Study found that about three-quarters of the AUs reported 
performing supervisory functions.^* About two-thirds recruit, select and 
appraise performance of staff. ^^' Some 27% serve on interview panels for 
prospective AUs.^'^ Current AUs average about 9% of their time on 
administrative duties. ^'^ Over 60% of the AJs reported that they spend at least 



^*^AJ Survey, response 13in. 
^^AJ Survey, response 13o. 
^**AJ Survey, response 18e & f. 
^^Burger, chart at 265 . 
^^Sharon, response #124. 
^^AJ Survey, response 14p. 
^*^Sharon, response #135. 
^''Sharon, response #140. 
^'^haron, response #141. 
^^^1992 AU Survey, response 8f. 



896 Verkuil, Gifford, Koch, Pierce, and Lubbers 



5% of their time on administrative duties and almost 90% spend from 1 to 
10% of their time on such duties. ^^ 

Sharon found that most AUs managed their own caseload. ^^^ About three- 
quarters prepared reports on the status of cases. ^^ 



D. Techniques for Presiding 

We sought to determine how administrative adjudicators conduct hearings 
and whether AUs and AJs differ in the way they proceed to a decision. These 
observations are organized into categories of prehearing, building a record, 
conduct of the hearing, reaching a decision, results of the initial adjudication 
and the administrative review process. 

1. Prehearing 

The GAO Study showed that AUs did not feel they should participate in 
the decision to investigate or issue a complaint. ^'^ 

The GAO Study found that the agencies divided about in half as to whether 
they required financial disclosures.^* It appears, however, that these 
statements were not used to assign cases. Only 4.4% of the AUs knew that 
they were and 45.9% Icnew that they were not. Because it seems likely that 
AUs would know if the statements were used to make assignments, the large 
percentage of those who did not know suggests that the statements were not so 
used for their assignments as well. 

The Sharon Study inquired into how AUs prepared for a hearing. He 
found that about 90% examined the pleadings and considered prehearing 
conferences.^ Over 90% engaged in preparatory research of the law and 
relevant subject matter, including consulting with experts.***^ The AUs 
considered both activities very important and requiring a high level of 
judgment. He also found that more than 80% of the AUs examined evidence 
prior to hearings, and they considered this activity both very important and 
requiring considerable judgment. **°' 



^**AJ Survey, response 19f. 
^^^Sharon, response #136. 
^^Sharon, response #137. 
'^GAO Study, response #7-3. 
^*GAO Study, response #6. 
^^Sharon, response #1 . 
**Sharon, response #2, see also #49 
^'Sharon, response #48. 



The Federal Administrative Judiciary 897 



Burger found that ALJs usually engaged in some prehearing conference.*^ 
The GAO, however, found that AUs did not use prehearing conferences in the 
"typical" case.**^ Only about 20% said that they did so. Almost half did use a 
prehearing conference in "long" cases. The 1992 AU Survey found that over 
half the AUs use a prehearing conference, with a quarter doing so 
frequently,*^ 

As might be expected, the total result is considerably skewed by the SSA 
practice. Fifty-seven percent of the AUs in non-SSA agencies currently use 
prehearing conferences frequently and another 28% use them occasionally.**^ 
At SSA, however, almost half of the AUs never or rarely use prehearing 
conferences and only 7% frequently use them.*^ The Cofer Study, however, 
found that SSA AUs believed they should use prehearing conferences in 
complex cases.*'"' 

Most AJs at least occasionally hold prehearing conferences. About 85% 
reported doing so, with about 60% doing so frequently.** 

The GAO Study indicated that prehearing discovery was used in about 80% 
of the typical cases.**' In almost 90% of those cases, discovery was 
"extensive"*'® and contested.*'' Sharon found that almost 80% of AUs issued 
subpoenas and ruled on discovery matters. ^'^ They considered this activity 
only moderately important, but they found it required a high level of 
judgment. Ninety-five percent of the SSA AUs responding to the Cofer Study 
found considerable value in their subpoena power. *'^ 

Sharon found that 65 % of the AUs authorized interrogatories but did not 
consider that activity very important, nor did they feel it required much 
judgment.*'^ SSA AUs were split on whether interrogatories should be used 
more often in their adjudications.*'^ 



^BuTgtT, chart at 215. 

*'^GAO Study, response #13-7. 

**^1992 AU Survey, response 12a. 

**^1992 AU Survey, non-SSA, response 12a. 

***1992 AU Survey, SSA only, response 12a. 

*'''Cofer Study, at 219. 

**AJ Survey, response 14a. 

^GAO Study, response #13-9. 

*'°GAO Study, response #13-10. 

*"GA0 Study, response #13-1 1 . 

*'^haron, response #28, see also #81. 

*'^Cofer Study, at 165. 

*''*Sharon, response #14. 

*'^Cofer Study, at 165. 



898 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The 1992 AU Survey found that only 1% of the current AUs order 
depositions frequently and another \1% occasionally.^*^ Sharon found that less 
than 50% of the AUs ordered depositions and they considered this activity 
moderately important.^''' Burger found that, except in a few agencies, 
depositions were rarely ordered.*'* Only in the Coast Guard and the FCC did 
over half the AUs order them frequently. In all agencies, only 13% of the 
AUs ordered them frequently, 38% ordered them occasionally, and almost 
50% rarely or never ordered them. In the SSA, no AUs ordered them 
frequently and only 16% ordered them even occasionally. SSA AUs did not 
support increased use of depositions.*'^ About two-thirds of the AJs reported 
that they rarely or never order depositions.*^ 

The GAO Study demonstrates how much prehearing activities can 
contribute to expediting the case. In more than 80% of the typical cases, 
major portions of the facts were stipulated in prehearing.*^' The AUs in the 
Sharon Study reported that only 60% elicited stipulations. *22 The GAO Study 
found that issues were stipulated in only about one-third of cases, whether 
short, typical or long.*^^ 

The GAO Study reported that in almost three-quarters of the typical cases, 
written testimony was submitted before the hearing.*^ Not surprisingly, this 
percentage dropped off for long cases, but only down to two-thirds. 

The Sharon Study found that 69% of the AUs determined what 
information should be furnished by the parties, and they considered this 
activity both very important and requiring considerable judgment.*^ 
According to the GAO Study, prehearing conferences usually resulted in 
disclosure of witness lists and synopses of the testimony.*^ This exchange was 
slightly more likely to occur in short cases than in long cases. Sharon found 
that 56 % of the AUs sought exchange of evidence and witness testimony. *2^ 

AUs are apparently very reluctant to short-circuit the opportunity for a 
hearing by granting summary judgment. Only 3% reported in the 1992 AU 

*'*1992 AU Survey, response 12b. 
*' ^Sharon, response #14. 
*'*Burger, chart at 214. 
*''Cofer Study, at 219. 
*^AJ Survey, response 14b. 
*2'GA0 Study, response #13-12. 
*^haron, response #23. 
*^GAO Study, response #13-15. 
*^GAO Study, response #13-13. 
*^Sharon, response #36. 
*^GAO Study, response #13-14. 
*^Sharon, response #12. 



The Federal Administrative Judiciary 899 



Survey that they do so frequently and another 26 % reported that they do so on 
occasion. 222 Sharon reported that about half of the AUs issued summary 
decisions and that they considered this activity extremely important, requiring 
considerable judgment. 223 Burger, however, found that only one-third reported 
granting summary judgments even occasionally and more than two-thirds 
granted them rarely or not at all.224 SSA AUs were even less likely to grant 
summary judgment. Overall, less than 3% of all AUs reported granting 
summary judgment frequently. Indeed, the AUs of only three agencies, FCC, 
ICC and SSA, reported granting summary judgment frequently. Few AJs 
reported that they frequently grant summary judgment but about a quarter 
reported that they sometimes do so. 225 

The GAO Study found that for 99 % of the time prehearing activities did 
not result in settlement of long or typical cases. 22<5 Settlements were reached in 
short cases less than 10% of the time. The Sharon Study found that only 35% 
of the AUs initiated or participated in settlement, but they considered it both 
very important and requiring considerable judgment. 22^ Only about a third in 
that study approved, disapproved or certified settlement to the agency, but they 
considered this activity both very important and requiring considerable 
judgment. 228 

The 1992 AU Survey found that 18% of the AUs report that their job to a 
great extent involves settling controversies and another third consider that it 
does so to some extent. 22^ More than half of the AJs reported that their job 
involves effecting the settlement of controversies to a great extent. 2^0 Almost 
another one-third think that effecting settlement occurs to at least some extent. 

2. Building a Record 

It is an essential doctrine of administrative law that presiding officials have 
an affirmative duty to ensure that the record is sufficient. They may not sit 
back and rest on the lawyers' performance. This, of course, is particularly 



2221992 AU Survey, response 12p. 

22^Sharon, response #97. 

22^Burger, chart at 239. Under current regulations SSA AUs do not issue "summary 
judgments' although they may deny a request for review, 20 CFR §§404.957, 416.1457; or issue 
a decision without holding a hearing in specific situations, 20 CFR §§404.948, 416.1448. 

22^ AJ Survey, response 14o. 

22^GAO Study, response #13-8. 
Sharon, response #24. 

22*Sharon, response #33. 

22^1992 AU Survey, response 9g. 

2^AJ Survey, response 15g. 



900 Verkuil, Gifford, Koch, Pierce, and Lubbers 



true in those processes in which one or both sides of the controversy are not 
represented. 

Current AUs apparently recognize their importance in ensuring an 
adequate record. The 1992 AU Survey found that over 90% of the current 
AUs feel that taking an active role in developing the record is appropriate, 
with 69% feeling that it is very appropriate.*^' As might be both hoped and 
expected, the SSA AUs feel an even higher duty to do so, with 77% 
considering that duty to be very appropriate.^^ Most AJs also find this 
function appropriate, with 63% finding it very appropriate.^' 

The Sharon Study suggests that almost 90 % of the AUs tried to ensure an 
accurate recording of the testimony. ^*^ The Burger Study suggests, however, 
that AUs were not very aggressive in building the record."' 

The SSA process represents one significant modification of the 
confrontational adversarial adjudication model. In those adjudications, no one 
serves as advocate for the denial of benefits, and often the claimant appears 
without representation. Therefore, the AUs must ensure the record is 
complete on both sides of the controversy. Many SSA AUs object to this 
procedure, which requires them to represent both sides of the controversy as 
well as to decide the case; in other words, to wear "three hats." The Cofer 
Study found that 60% of the SSA AUs objected to that approach. ^^^ 

Not surprisingly, the 1992 AU Survey found that most SSA AUs said that 
wearer of three hats is an appropriate description of their job, with 53 % saying 
it is very appropriate."^ In contrast, only about a quarter of the non-SSA AUs 
consider that term an appropriate description, with only 15% saying it is a 
very appropriate description.**^ 

The processes employing AJs apparently do not generally put them in this 
position. Some 64% stated that "wearer of three hats" is not an appropriate 
description of their function."^ 

An alternative to confrontational adjudications might be a process that 
requires the government to ensure that a complete docket is presented to the 
decisionmaker, much like the continental administrative adjudicative model. A 



'•^''1992 AU Survey, response 24a. 

^'^1992 AU Survey, SSA only, response 24a. 

*'^'aJ Survey, response 18a. 

"^Sharon, response #55. 

"'Burger, at 214 -243. 

"^ofer Study, at 162. 

"M992 AU Survey, SSA only, response 21 f. 

"^1992 AU Suivey, non-SSA, response 22f. 

"^AJ Survey, response 23 f. 



The Federal Administrative Judiciary 90 1 



majority of the SSA AUs, however, felt that a well-developed case file could 
not replace adversarial confrontation.**^ 

Many ALJs hold hearings as appeals of decisions reached at some other 
level. The record compiled at this other level is often important. However, 
three-quarters of all AUs feel that the record is not adequate to support the 
decision at the other level, with 39% finding the record frequently not 
adequate. ^^ About three-quarters also think that the record is not adequate to 
prepare them for their hearing, with 44% finding that this frequently occurs.*^ 

SSA AUs reported an even poorer performance at the other level. Ninety- 
three percent consider the record inadequate to support the decision at the other 
level, with over half finding the record frequently inadequate for that 
purpose. ^^ Ninety-two percent consider the record inadequate to prepare them 
for their hearing, with 56% finding the record frequently inadequate for that 
purpose.**^ 

Administrative law tenets generally provide that rules about the 
admissibility of evidence should not control in administrative hearings. The 
Sharon Study, however, found that 95% of the AUs ruled on the admissibility 
of evidence."' 

In contrast to the formality of trial, administrative law urges that evidence 
should be admitted for whatever it is worth. The expert administrative 
decisionmakers can then judge how much weight to give the information. The 
theory is that more information is better and that the danger caused by low 
admission thresholds is mitigated by the quality of the decisionmakers. 

The results of the Burger Study suggested that AUs were more formalistic 
regarding admissibility than is consistent with administrative law theory. Only 
about 5% of the non-SSA AUs frequently admitted information for "whatever 
it is worth," while almost two-thirds rarely or never did so."^ The picture was 
quite different in the SSA. There, some 40% frequently did so and another 
40% occasionally did so. 

The 1992 AU Survey shows a convergence, with the non-SSA AUs 
becoming somewhat less formalistic and the SSA AUs becoming somewhat 
more so. Only 11 % of the current non-SSA AUs frequently admit evidence 
for what it is worth but another 30% do so occasional ly."^ In contrast, 22% 



*^Cofer Study, at 216. 

"''1992 AU Survey, response 11a. 

^1992 AU Survey, response lib. 

^^^1992 AU Survey, SSA only, response 11a. 

*^1992 AU Survey, SSA only, response lib. 

"'Sharon, response #82. 

"^Burger, chart at 220. 

"^1992 AU Survey, non-SSA, response 12m. 



902 Verkuil, Gifford, Koch, Pierce, and Lubbers 



of the SSA ALJs frequently admit evidence for what it is worth and another 
37% occasionally do so.<^ 

About one-quarter of the AJs frequently admit evidence for "whatever it is 
worth" and another one-third reported that they occasionally do so."^ Less 
than half reported that they rarely or never do so. 

Hearsay evidence has often been the focus of attention in the debate over 
the applicability of the rules of evidence to administrative adjudications. Cofer 
summarized the SSA ALJs' opinion of hearsay evidence: 

Hearsay evidence was upheld with some confidence as only 
27 percent saw the hearsay rule as too broad, allowing the 
Agency a means of avoiding the expense of obtaining more 
reliable evidence. Nor did the ALJs perceive hearsay to be 
an obstruction to identifying the issues of the case or to 
artificially prolong the proceedings; only 22 percent thought 
this to be so.*'^ 

The Sharon Study reported that 90% of the ALJs took official notice where 
appropriate, but they considered this activity of only moderate importance, 
requiring only moderate judgment. ^^ The Cofer Study found that SSA ALJs 
rarely use official notice.^ 

The Sharon Study found that 70% of the ALJs requested information in 
addition to discovery. ^^ The Burger Study, however, found that very few 
non-SSA ALJs requested additional evidence, whereas almost half rarely or 
never did so."° Once again, SSA practice was very different. About 80% of 
the SSA ALJs requested additional evidence. Even considering the difference 
in procedures, this observation suggests that most ALJs were not as active in 
supplementing the record as they might be under the APA. 

The 1992 ALJ Survey found all ALJs more aggressive in seeking evidence 
than did the Burger Study. About 63% of the current ALJs frequently ask for 
additional evidence and another 24% occasionally do so.^' The contrast 
between SSA and non-SSA AUs continues. Sixty-seven percent of the non- 
SSA ALJs reported that they ask for additional evidence, with about a quarter 



^1992 AU Survey, SSA only, response 12m. 

^^AJ Survey, response 14m. 

*^Cofer Study, at 165. 

"''Sharon Study, at 84. 

<^Cofer Study, at 221. 

"^Sharon, response #52. 

''burger, chart at 225. 

"'1992 AU Survey, response 12d. 



The Federal Administrative Judiciary 903 



doing so frequently. "2 in contrast, 85% of the SSA ALJs frequently ask for 
additional evidence, with all the rest doing so occasionally.^ 

Almost a third of the AJs request additional information frequently and 
more than 80% request such information at least occasionally.^ 

AUs seem to have become somewhat less aggressive as to legal issues. 
Sharon found that 85% directed counsel to research questions of law or 
policy,^ and 74% directed staff to do so."* He found that 87% directed 
counsel to brief specific legal issues."^ Burger found that more than one-third 
requested briefs frequently and more than one-half ordered briefs 
occasionally.*** Almost all SSA ALJs ordered briefs only occasionally or not 
at all.**' The current AUs ask for briefs about three-quarters of the time, 
28% doing so frequently. SSA ALJs are less likely to do so than non-SSA 
ALJs.*''° About a quarter of the AJs request briefs frequently and almost half 
do so on occasion.*^' 

The 1992 ALT Survey found that 38% of the ALJs receive written 
"testimony" frequently and another 38% do so occasionally.*^ SSA ALJs are 
somewhat more likely to do so than non-SSA ALFs.*^ 

Cofer found that SSA ALJs favored more written evidence. Fifty-six 
percent agreed that more written evidence should be used and another 20% 
were neutral on that issue. *^^ Eighty-five percent, with 10 percent neutral, 
however, opposed substituting oral argument for testimony.*''^ 



**2l992 AU Survey, non-SSA, response 12d. 

**'1992 AU Survoy. SSA only, roiponto t2d. 

***AJ Survey, response 14d. 

**^Sharon, response #99. 

***Sharon, response #100. 

**^Sharon, response #104. 

***Burger, chart at 225-227. 

**^urger, chart at 226. 

*^Compare 1992 AU Survey, SSA only, response 12e with 1992 AU Survey, non-SSA, 
response 12e. 

*^'AJ Survey, response 14e. 

*'^1992 AU Survey, response 12n. 

*^Compare 1992 AU Survey, SSA only, response 12n with 1992 AUs survey, non-SSA, 
response 12n. 

*'''*Cofer Study, at 218. 

*''^Cofer Study, at 218. 



904 Verkuil, Gifford, Koch, Pierce, and Lubbers 



3. Conduct of the Hearing 

An administrative adjudicator's duty is to ensure a complete record carries 
forward into the conduct of the actual hearing. AUs are expected to be active 
during the hearing. Of course, the quality of the representatives of the various 
interests may affect the AU's aggressiveness at the hearing. Hence, 
conclusions about the performance of this function must be tempered by the 
relative competence of the lawyering. Nonetheless, even assuming 
adjudicators' attitudes towards aggressive conduct of the hearing are a function 
of both their view of their role and the performance of representatives, this 
information might affect the judgment as to the nature of the adjudicator in a 
given administrative process. 

In response to our general question, over two-thirds of the current AUs 
consider it very appropnate to take an active role in developing the record, 
with most of the remainder saying it is somewhat appropriate.^^** The SSA 
AUs are more likely to think so than the non-SSA AUs.^^ Two-thirds of the 
AJs believe it is completely appropriate for them to take an active role in 
developing the record.^''* Most of the remainder believe it is at least sometimes 
appropriate. 

Burger found that almost 60% of the non-SSA AUs frequently questioned 
witnesses and almost all the remainder questioned them occasionally.^''^ 
Almost all SSA AUs questioned witnesses frequently, again as might be 
expected. The 1992 AU Survey found that almost all current non-SSA AUs 
questioned witnesses, with 64% doing so frequently. **° It found that 96% of 
the SSA AUs question witnesses frequently.**' The Sharon Study found that 
96% of the AUs examined witnesses and that they considered this activity 
important and requiring considerable judgment.**^ Over two-thirds of the AJs 
reported that they frequently question witnesses, and about 20% reported that 
they do so occasionally.^^ 

The Sharon Study found that 76% of the AUs called witnesses and 
considered that activity important, requiring considerable judgment.^'' Burger, 



^''^1992 AU Survey, response 24a. 

^""Compare 1992 AU Survey, SSA only, response 24a with 1992 AU Survey, non-SSA, 
response 24a. 

*^AJ Survey, response 18a. 

^'^urger, chart at 230. 

^*^1992 AU Survey, non-SSA, response 12i. 

^'1992 AU Survey, SSA only, response 12i. 

^^haron, response #21. 

^^AJ Survey, response 14i. 

^^Sharon, response #72. 



The Federal Administrative Judiciary 905 



however, found that few non-SSA AUs called witnesses.*^ The Burger Study 
shows that 85 % of the non-SSA AUs rarely or never called witnesses. On the 
other hand, 60% of the SSA AUs called witnesses frequently and almost 30% 
called them occasionally. The 1992 AU Survey finds a similar practice 
among current AUs. About a quarter of the non-SSA AUs call their own 
witnesses; whereas over 80% of the SSA AUs call their own witnesses. <*^ 

Very few AJs reported that they call witnesses. Seventy-nine percent 
reported that they rarely or never do so and most of the remainder reported 
that they do so only occasionally.**^ 

Sharon found that about two-thirds of the AUs determined the need for 
expert witnesses.**^ The 1992 AU Survey found that most current AUs 
require experts.^ The SSA and non-SSA AUs differ considerably, however. 
Almost all SSA AUs require experts, with 80% doing so frequently; whereas 
less than half of the non-SSA AUs do so.^ 

Almost half of the AJs reported that they at least occasionally require 
experts.^' Only about 10% do so frequently. 

Cofer found that SSA AUs considered government-paid expert witnesses 
to be as reliable as others.*^ 

Sharon found that 84% of the AUs established limits on cross- 
examination.^^ They considered this activity moderately important, requiring 
only a moderate amount of judgment. He also found that 97 % of the AUs 
exercised reasonable control over verbose, evasive, cumulative or irrelevant 
testimony.^ They considered this activity moderately important, requiring 
only moderate judgment. 



^^Burger, chart at 232. 

^Compare 1992 AU Survey, SSA only, response 12j with 1992 ALJ Survey, non-SSA, 
response 12j. 

^^AJ Survey, response 14j. 

^^Sharon, response #50. 

^1992 AU Survey, response 12c. 

^Compare 1992 AU Survey, SSA only, response 12c with 1992 AU Survey, non-SSA, 
response 12c. 

^'AJ Survey, response 14c. 

^^ofer Study, at 165. Because of the questions she asked on this issue, the results are 
ambiguous. In the most pertinent questions, she asked: "The AU should put more weight on the 
claimant's own physician's diagnosis of the claimant than that of the state-paid consulting 
physician." Her compuUtion of the weighted answers was 35% agreeing but 389L-disagreeing 
and another 26% neutral. Perhaps, this indicates nothing more than a general practice of judging 
the credibility of these witnesses as any others. 

^'^Sharon, response #69. 

^'^Sharon, response #74. 



906 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The Sharon Study reported that 94% of the AUs controlled improper 
conduct of counsel and others.^ They considered this activity moderately 
important, requiring a moderate amount of judgment. 

The extent to which adjudicators feel the need to go "off-the-record" 
indicates their commitment to the formality of the process. An adjudicator 
who views the process in less judicialized terms will find less need to protect 
the "record" from tainted information. Burger found that almost all non-SSA 
ALJs went off the record at least occasionally and one-third did so 
frequently.*^ The three agencies in which the AUs were likely to go off the 
record were FERC, NLRB and SEC. Almost all SSA AUs reported that they 
go off the record only occasionally or not at all. The 1992 AU Survey found 
that SSA AUs rarely go off the record, but non-SSA AUs are inclined to do 
so at least occasionally.*'^ Over half of the AJs reported that they go off the 
record occasionally and another 17% reported that they do so frequently.** 

Burger reported that almost three-quarters of the AUs in all agencies rarely 
or never found the need to afford in camera treatment.*^ Sharon, however, 
found that about two-thirds did so and 84% took some steps to safeguard 
confidential, privileged and sensitive materials.^ Few current AUs proceed 
in camera. "^^ About two-thirds of the AJs reported that they rarely or never 
hold in camera proceedings and most of the remainder do so only 
occasionally.^ 

The two groups follow the same practices with respect to interlocutory 
appeals. Burger found that AUs rarely certified questions for interlocutory 
appeal^ and Sharon found that less than a third performed this function at 
all.^ The 1992 AU Survey found that 92% of current AUs either do not 
certify questions or found the question did not apply to them.^^ Eighty -eight 
percent of the AJs report that they rarely or never certify interlocutory appeals, 
with most of the remainder doing so only occasionally. ''^^ 



^'^Sharon, response #76. 
*^urger, chart at 234. 

•'^Coinpare 1992 AU Survey, SSA only, response 12g with 1992 AU Survey, non-SSA, 
response 12g. 

**AJ Survey, response 14g. 
•burger, chart at 235. 
Aharon, response #92 &, #93. 
^'1992 AU Survey, response 12h. 
"^^AS Survey, response 14h. 
'"^Burger, chart at 235. 
^"^^Sharon, response #95 . 
"''^1992 AU Survey, response 12k. 
''^^AJ Survey, response 14k. 



The Federal Administrative Judiciary 907 



4. Reaching a Decision 

How do administrative adjudicators come to a decision? Each of the 
studies contributes to the answer to this question. 

Of course, an important decisional function of an adjudicator is evaluating 
the evidence. The Sharon Study asked AUs what they used to evaluate 
evidence and the importance of each of these evaluative techniques. Almost 
all listed demeanor, credibility, probative value and competence.^ They 
considered each of these to be extremely important and they felt that each 
required considerable judgment. 

Almost 100% of current AUs in all agencies consider the facts of the case 
to be a very important influence on their decisions.^ The Burger Study 
received the same response from past AUs.^^ Almost all of the AJs report 
that their evaluation of the facts is a very important influence on their 
decisions, as is the applicable statute. ^'° 

The Burger Study distinguished the responses of non-SSA AUs and those 
of SSA AUs.^" Because the SSA process involves a specific type of 
proceeding and those AUs are so dominant it is useful to consider separately 
the findings about some of the decisional elements. 

The Burger Study found that almost all non-SSA AUs considered the 
applicable statute to be very important and 90% considered published agency 
decisions very important. ^'^ The 1992 AU Survey received the same 
response. ^'^ Over two-thirds consider court precedent and agency regulations 
very important. Ninety-two percent of current AUs consider agency 
regulation as very important and 84% consider court precedent important.^''* 

The Burger Study found that the factors influencing SSA AUs were similar 
but varied slightly. ^'^ SSA AUs considered facts very important. Published 
agency decisions had significantly less influence, while agency regulations 
retained the same level of influence as with non-SSA AUs. SSA AUs also 
seemed to consider court precedent somewhat less important. 



^^Sharon, response #85-88. 

^^1992 ALJ Survey, response 16o. 

""burger, chart at 308. 

^'°AJ Survey, response 16o and 16a. 

^"Burger, compare chart at 309 with chart at 310. 

'''^Burger, chart at 309. 

^'^1992 ALJ Survey, non-SSA, response 16a. 

^'^1992 ALJ Survey, non-aLJs, response 16b & c. 

'''^Burger, chart at 310. 



908 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The 1992 ALJ Survey found that 92% of the SSA AUs consider statutes 
very important and 96% consider agency regulations very important. ^'^ All 
consider court precedent in^wrtant, with 85% considering precedent very 
important. ^'^ 

Similarly, almost all AJs consider the applicable statute very important.^'* 
About 90% of the AJs find published agency regulations, federal court 
precedent and published agency opinions very influential.^'^ 

The Burger Study found that personal perceptions did appear relatively 
important.*^ Almost all AUs found personal standards of fairness either very 
important or moderately important. Most found personal concepts of public 
interest either very important or moderately important. About two-thirds felt 
that their perceptions of the agency's policy goals were important to their 
decisions. 

Eight-two percent of the current AUs reported that personal standards of 
fairness were important.^' Less than half found public interest important.^ 
And less than half found that their perception of agency policy goals are 
important.*^ 

Fewer AJs reported that their personal standards of fairness are an 
important influence on their decisions. Still, about three-quarters found that 
factor important.^ Fewer than half felt that their ideas of public interest are 
important and only a third think their perception of agency policy goals are 
important."^ Moreover they are slightly more inclined than the AUs to 
consider the latter two personal factors inappropriate to consider. 

Decisions of other AUs were rated as either moderately important or not 
important by non-SSA AUs.^ Sharon found that over three-quarters of the 
AUs read the decisions of other judges in their agency but did not consider 
them very important.^^ The 1992 AU Survey found that 38% of the current 



'''^1992 ALJ Survey, SSA only, response 16b & c. 

'''''1992 AU Survey, SSA only, response 16c. 

^'^AJ Survey, response 16a. 

^'^AJ Survey, response 16b, c & d. 

''burger, chart at 309. 

^'1992 ALJ Survey, response 16m. 

^^1992 AU Survey, response 161. 

''^1992 AU Survey, response 16k. 

^^AJ Survey, response 16m. 

^^AJ Survey, response 161 & k. 

''burger, chart at 309. 

^^Sharon, response #115. 



The Federal Administrative Judiciary 909 



AUs think that other AUs' opinions are not important and only 6% find those 
opinions to be very important. ^^ 

Burger found that about two-thirds of the AUs considered staff positions 
important but only about 10% found them to be very important. ^^ About 16% 
found it inappropriate to consider staff positions. The 1992 AU Survey found 
that only 7 % of the current AUs think staff positions are very important, with 
36 % finding them somewhat important, and more than a quarter finding staff 
positions inappropriate to consider. ^^ 

Burger found that public statements by agency officials carried little weight 
with most AUs.^^ Over three-quarters of the AUs considered private 
statements of agency officials to be inappropriate to consider and the rest found 
such statements unimportant.^^ The 1992 AU Survey found that a majority of 
the current AUs think that consideration of both private and public statements 
of agency officials is inappropriate. ^^^ 

Burger found that some AUs in all agencies took some notice of public 
opinion but very few found it important. ^^ The 1992 AU Survey found 
public opinion has little influence.^^ About 52% feel that it is inappropriate to 
consider public opinion. ^^ 

Only 7 % of the current AUs found statements from Congress important, 
with only 2% finding such statements very important. ^^^ More than half 
considered such statements inappropriate for consideration. ^^^ Burger found 
that more than two-thirds of all AUs found consideration of statements made 
by members of Congress to be inappropriate and most of the remainder 
thought them to be of no importance. ^^^ 

The 1992 AU Survey found that positions of others in the agency 
influences SSA AUs to a similar but slightly different extent. The Burger 
Study agreed for past AUs.^^ Both staff positions and opinions of other 



^^1992 AU Survey, response 16g. 

^^Burger, chart at 309. 

^^1992 AU Survey, response 16f. 

^^Burger, chart at 309. 

'burger, chart at 309. 

^^''1992 AU Survey, responses 16h «St i. 

^^Burger, chart at 308. 

^^1992 AU Survey, response 16n. 



'Id. 



330y 

^^4992 AU Survey, response 16j. 

"^Burger, chart at 308. 
^^Burger, chart at 310. 



910 Verkuil, Gifford, Koch, Pierce, and Lubbers 



AUs had less influence with SSA ALJs.^^' Like other AUs, SSA AUs 
consider statements of agency officials, members of Congress and public 
opinion of little importance to their decisions. "^^^ 

In general, AJs respond to much the same influences as ALFs.^^^ Over half 
of the AJs consider decisions of other presiding officers to be important, but 
only 15% think they are very important.^** Fewer than half of the AJs 
considered staff positions important and more than a quarter felt that it is 
inappropriate to consider staff positions. "^^ Almost two-thirds of the AJs 
consider public statements by agency officials to be inappropriate to consider 
and almost all the rest think those statements are not important. ^^ Three- 
quarters of the AJs find private statements by agency officials inappropriate to 
consider with most of the rest considering them unimportant.'''*^ Less than 7% 
of the AJs find public opinion important and almost three-quarters feel it is 
inappropriate to consider. ^'^ More than two-thirds of the AJs consider 
statements by members of Congress to be inappropriate to consider and almost 
all the rest think those statements are not important,''*^ 

The Cofer Study concluded that SSA ALJs tended to bias their decisions in 
favor of the claimants. She based this conclusion on the fact that where the 
evidence is of equal weight on both sides, 60% of the ALJs would rule in 
favor of the claimant. ''* This practice is contrary to the APA, which places the 
burden of proof with the "proponent of a... order," in this case the claimants. ^^' 
Cofer observed that "a substantial portion of the ALJs must perceive that the 
process as a whole is weighted against the claimant in borderline cases. "^^^ 

The GAO Study foimd that AUs rarely engaged in research on agency 
policy, legal precedent or technical issues. ^^^ They almost never did so in 
short cases and did so only about a third of the time in long cases. Sharon, 



''^'Compare 1992 AU Survey, SSA only, responses 16f & g with 1992 AU Survey, non- 
SSA, responses 16f&g. 

^^^ompare 1992 AU Survey, SSA only, responses 16i, j & n with 1992 AU Survey, non- 
SSA, responses 16i, j & n. 

^^•'AJ Survey, response 16. 

^**AJ Survey, response 16g. 

^^^AJ Survey, response 16f. 

^^AJ Survey, response 16h. 

^^^AJ Survey, response 16i. 

^''^AJ Survey, response 16n. 

^''^AJ Survey, response 16j. 

■'^Cofer Study, at 168. 

^^'APA 1556(d). 

^^^Cofer Study, at 168. 

^"GAO Study, response #13-15. 



The Federal Administrative Judiciary 9 1 1 



however, reported that 96% of the ALJs researched legal and policy from 
statutes, judicial decisions and the agency, and that they considered this 
activity extremely important, requiring considerable judgment.''^ 

One argument for housing adjudicators in the relevant agency is that they 
have access to expertise. One indication of the importance of this factor is the 
extent to which the adjudicator obtains technical assistance outside the 
adjudicative proceeding. 

Burger asked where ALJs obtained their technical information.''^^ Most of 
the ALJs found hearing processes, testimony and exhibits to be very important 
sources of technical assistance. Some made extensive use of agency resources 
outside the actual hearing. Nearly half found agency research reports to be 
either very important or moderately important. ^^ About a quarter found 
consultation with agency experts to be either very important or moderately 
important. Sharon found that 41% of the ALJs consulted professional and 
technical experts and considered those consultations to be important. ^^^ Cofer 
reported that 90% of the SSA ALJs said they consulted agency staff in less 
than a quarter of the cases. ''^^ 

Thus, ALJs use agency staff not involved in the adjudication, but the 
availability of such resources may not be very important. However, the GAO 
Study found that most ALJs thought improved administrative and/or technical 
support would improve the administrative process. ^^' 

The Cofer Study of SSA ALJs inquired into whether consultations with 
agency staff not engaged in the adjudications should be disclosed. She found: 
"Eighty-two percent of the ALJs agreed that any such information should be 
revealed to the claimant, although 90 percent indicated that they were involved 
in such consultations in only 0-24 percent of their cases. "^^^ 

The Sharon Study found that almost 90% of the ALJs considered proposed 
findings of fact and conclusions of law.^<^' Moreover, they considered 
proposed findings extremely important and the use of such fmdings to require 
considerable judgment. 



^**Sharon, response #114. 
''"Burner, chart at 250. 
^^urger, chart at 250. 
^^^Sharon, response #5 1 . 
"'^Cofer Study, at 166. 
''^'GAO Study, response #7-9. 
^*^Cofer Study, at 166. 
''^'Sharon, response #113. 



912 Verkuil, Gifford, Kcx:h, Perce, and Lubbers 



5. The Result of the Initial Adjudication 

Written or "initial" decisions are not required under the APA, §557(b). 
Therefore, an administrative adjudicative process could use ALJs to merely 
compile the record and submit it to the agency head without decision. 
However, Burger found that most administrative adjudicative programs did not 
use this system. Ninety percent of the AUs in all agencies rarely or never 
merely certified the record to the agency head for decision. ''^^ Sharon reported 
that less than a quarter did so.^^^ The 1992 AU Survey found that only 4% of 
the current AUs even occasionally certify the record.^" Almost all of the AJs 
reported that they rarely or never certify a decision to the agency head.^^ 

Burger found that over three-quarters of both non-SSA and SSA AUs 
rarely or never delivered oral decisions.^" Sharon reported that slightly fewer 
than half the AUs did so.^^^ The 1992 AU Survey found that few current 
AUs deliver oral decisions. ^^ Almost two-thirds of the AJs report that they 
rarely or never deliver oral decisions, but about a third reported that they 
frequently do so.^^ The GAO Study, however, found that most AUs thought 
more oral or "per curiam" opinions would improve the process.^ 

Thus, written decisions are by far the norm. Sharon reported that almost 
all AUs prepared and issued written decisions and orders."^' They considered 
this the most important part of their job and found that doing so required the 
most judgment of any of their activities. 

To whom are these decisions directed? Burger reported that almost all 
AUs directed their decisions to the parties in the dispute.^ Obviously, 
appellate authorities would be of some concern to AUs, but only about a third 
reported that administrative reviewers or federal judges were a very important 
audience for their decisions.^ Those outside the relevant decisionmaking 
process were not considered important. Considered unimportant audiences by 
most AUs were industry, the public, the bar, Congress, interest groups and 



''^^Burger, chart at 242. 
"^^Sharon, response #119. 
^<^1992 AU Survey, response 121. 
^^AJ Survey, response 141. 
"^^urger, chart at 240. 
^^^Sharon, response #117. 
■^^1992 AU Survey, response 12o. 
^^AJ Survey, response 14n. 
"^GAO Study, response #7-10. 
^'Sharon, response #118. 
^^Burger, chart at 316, item 1. 
^^Burger, chart at 316, items 2 & 3. 



The Federal Administrative Judiciary 9 1 3 



other AUs.^^ These responses add support to the conclusion that AUs focus 
on the specific controversy before them and are not particularly interested in 
doing more than resolving the particular dispute. 

6. Administrative Review Process 

The GAO Study found that about three-quarters of the AUs thought that 
greater finality for AUs' decisions would, to a great extent or better, be an 
improvement.^^ The Cofer Study reported that most SSA AUs believed that 
theirs should be the final decision of the agency and that the record should 
close after the AU's decision. ^^ Interestingly, some AJs do have final 
decisionmaking authority. 

Burger offered these observations about the practicality of administrative 
review: 

[H]eavy caseloads have an impact on the uniformity of the 
law. Just as busy appellate courts provide only limited 
supervision of the lower courts' work, so too are agency 
reviewing authorities constrained by the pressure of numbers 
from scrutinizing all AU's decisions.... Less is known about 
the basis on which agency heads select cases for discretionary 
review [than appellate courts], a matter complicated by 
differences in agency structure and procedures. Nonetheless, 
in most of the agencies the majority of AU decisions are not 
reviewed and become the final agency decisions. The degree 
of independent judgment they exercise is thus of paramount 
importance for AUs and for other federal judges as well.^^ 

The 1992 AU Survey found that about one-third of the AUs are bothered 
by too much review.^ About three-quarters of the AJs are rarely or never 
bothered about this, and only 10% of the AJs are often bothered by too much 
review. ^^ 

The GAO Study found that administrative review occurred in about half of 
the typical cases. ^^^ The percentage varied greatly as between short and long 



^'^Burger, chart at 316, items 4, 5, 6, 7, 8 & 9. 

''^^GAO Study, response #7-2. 

""^Cofer Study, at 170. 

^Burger, at 362. 

""^1992 ALJ Survey, response 15d. 

^^AJ Survey, response 27d. 

"^GAO Study, response #13-19. 



914 Verkudl, Gifford, Koch, Pierce, and Lubbers 



cases. Slightly more than 10 percent of the short cases were appealed but 
almost three-quarters of the long cases were appealed. 

The GAO Study found that administrative appeal is a matter of right in the 
processes presided over by about one-third of the AUs.^' In about 23% of 
the adjudications, review is a matter of discretion. A majority of the AUs 
reported administrative review occurred in their agency based on the agency's 
own motion and on requests by the parties.*^ About 60% reported that 
administrative review is de novo review, but only 8% reported that review 
would result in a de novo hearing.'^ 

The opinion of the administrative review authority should be one avenue of 
communication between the AUs and the head of the agency. The GAO 
Study, however, found that less than 60% of the AUs perceived that they 
receive formal feedback from the administrative review authority. Over 30% 
of the AUs reported no feedback.^ 

Although the GAO Study attempted to inquire about the AUs' perceptions 
as to why their decisions are reversed by the administrative review authority, 
the information obtained is ambiguous. Of importance is that three-quarters 
responded that the review never took facts out of context to reach a 
preconceived decision, and another 12% said the reviewing authority seldom 
did so.^^ The reviewing authorities apparently rarely found that the AUs 
misapplied the law or committed factual error. The AUs apparently perceived 
that the review authority either interpreted the same facts differently or found 
other facts to be determinative. Thus, it seems that most reversals were the 
result of a different interpretation of the factual record. 

The 1992 AU Survey found that almost half of the AUs think that the 
lack of clear standards for review is a problem.^ Almost three-quarters of the 
AJs feel that lack of agency standards for review of their decisions is not a 
problem.^ Nonetheless, one-quarter did respond that the absence of review 
standards is either sometimes or frequently a problem. 

The GAO Study found that over half of the AUs responded that at least 
sometimes those who review their decisions were not nearly as qualified as 
they were."^ The 1992 AU Survey found that 62% of the current AUs think 
that those who review their work are not nearly as qualified as they, with 29% 



"^'GAO Study, response #38. 

^*^A0 Study, response #38 atuchment X. 

''^^GAO Study, response #39. 

■^GAO Study, response #40. 

^^GAO Study, response #41 . 

"^1992 AU Survey, response 14f. 

^^AJ Survey, response 24f. 

^GAO Study, response #44-9. 



The Federal Administrative Judiciary 915 



frequently thinking so. Cofer found that many SSA ALJs believed that the 
review authority was less qualified than they.^ Sixty -nine percent of the 
current SSA AUs think that officials who review their work are not nearly as 
qualified as they, with 34% frequently thinking so.^ 

The 1992 ALJ Survey found that 62% of the AUs think that review by 
unqualified persons is a problem, with 33% thinking this is frequently a 
problem.^' The current SSA AUs find this to be more of a problem than 
current non-SSA AUs.^ 

Almost half the AJs never have the feeling that those who review their 
work are not almost as qualified as they are.^ However, one-quarter 
sometimes feel that way, and 14% often or always feel that way. Almost two- 
thirds report that review by persons who they consider unqualified was not a 
problem.'''^ 



E. Across-the-Board Measures of Performance 

Study of actual practice demonstrates that it is difficult to evaluate 
adjudicator performance across programs. The cases and the applicable law 
vary so extensively that the search for general performance standards seems 
futile. The difficulty is in developing some generalized measure of what might 
be called the "intellectual complexity" of adjudications in various programs. 
Given this foundational weakness, it is difficult to make relative judgments 
about delay and efficiency of caseload resolution. 

Recognizing this difficulty, Burger attempted to develop surrogate 
measures of such complexity but her attempt does not seem to support a 
reliable system for generalized performance evaluations.^^ 

The GAO Study attempted some measure of the relative complexity of 
types of cases and among programs. Again these measures are so 
unsatisfactory as to be of little value in our estimation. The study asked 
questions about the amount of time, pages of transcripts, number of parties, 
number of witnesses and length of hearing as to cases the AUs considered 



■^Cofer Study, at 170. 
'''°1992 AU Survey, response 15i. 
^'1992 AU Survey, response 14i. 

■''^omparc 1992 AU Survey, SSA only, response 14i with 1992 AU Survey, non-SSA, 
response 14i. 

^'^AJ Survey, response 27i. 
^'^AJ Survey, response 24i. 
''^^Burgerat 190. 



916 Verkuil, Gifforx), Koch, Pierce, and Lubbers 



short, typical and long.^ The range of the results were so great as to be 
meaningless. For example, a short case might have between 1 and 5,000 pages 
of transcripts and a long case might have between 1 and 25,000 pages of 
transcripts. It seems impossible to draw any conclusions from this 
information. 

We are driven to the conclusion that relative study of these types of data is 
of little value. Performance improvement, if possible at all, must be taken on 
a process-by-process basis. Because of these definitional and measurement 
difficulties, neither of our surveys attempted to delve into information aimed at 
evaluation. 

One performance evaluation idea explored in the GAO Study was the 
evaluation of ALJs by an independent panel of attorneys. Not surprisingly, 
almost three-quarters of the AUs disagreed with this proposal. ^^ 



F. Relationship with Agency Hierarchy and Others in the 

Agency 

The adjudicators' relationship with the agency must be viewed from two 
perspectives: the structural relationship, including supervision and 
management practices, and the policy relationship, including the system 
through which the agency hierarchy communicates its policy judgments and the 
adjudicators incorporate those policy judgments into their decisions. 
Recommendations aimed at coordinating the role of the initial adjudicators 
within the greater adjudicatory bureaucracy could be informed by the 
adjudicators' attitudes and opinions as to both aspects of the relationship. 

1. Structural Relationship 

The Burger Study gives us some information about the AUs' perceptions 
of the structural relationship. These answers were found in her inquiries about 
the problems AUs perceived. Probably the question most likely to relate to 
structural relationship in the minds of AUs is whether they felt they confront 
"too close supervision." Almost all the AUs found that not to be a 
problem.^ 

The 1992 AU Survey asked the same question of current AUs. Almost 
90% of the AUs found that the prospect of too close supervision is either not 



'''^GAO Study, response #13. 
"^GAO Study, response #10. 
^Burger, chart at 346 & 365, 



The Federal Administrative Judiciary 917 



a problem or not applicable.^ However, 61% found that agency interference 
is a problem, with 26% finding it to be a frequent problem.** 

Almost 80 % of the AJs report that too close supervision is not a problem, 
with most of the remainder reporting that it is only sometimes a problem.*" 
Some AJs do have some complaints regarding the structural relationships. 
While about two-thirds of the AJ's do not agree that agency interference is a 
problem, 1 1 % strongly agree and another 23 % agree. *^ 

Burger observed: "Of the roughly 6 percent of the total number of AUs in 
our sample who claimed that they were too closely supervised, all but one of 
the judges worked for SSA."*'^ i^g Cofer Study reported that SSA ALJs did 
feel a tacit pressure to limit their grants.*^ The current SSA AUs find close 
supervision to be only a slightly more frequent problem than non-SSA ALJs.*'^ 

Almost every agency had some management information system that gives 
the status of each case assigned to each ALJ, according to the GAO Study. *^ 
Most reported that these systems reported the number of cases handled by each 
AU.*'^ At the SSA, the AUs had to meet some quota of cases each month. 
Not surprisingly, the Cofer Study found that most SSA AUs objected to these 
quotas.** 

The GAO Study reported that the AUs believed that management 
information systems might increase productivity and were not likely to 
decrease productivity or motivation.*^ Those systems did seem to increase 
peer pressure to increase productivity. ^'° 

The GAO Study found that the AUs did believe, however, that such 
systems adversely affect quality.*" The 1992 AU Survey found that 69% of 
the AUs think caseload burden interferes with quality. ^'^ SSA AUs 



"^^1992 AU Survey, response 141. 

*"1992 AU Survey, response 23a. 

*''AJ Survey, response 241. 

*^AJ Survey, response 26a. 

*'^Burger at 364. 

*^Cofer Study, at 171. SSA AUs grant a benefit by reversing the initial denial by local 
offices and, hence, SSA AUs* "reversal" rale is, in fact, the rate at which they grant benefiU. 

*^^Compare 1992 AU Survey, SSA only, response 141 with 1992 AU Survey, non-SSA, 
response 141. 

*^GAO Study, response #29. 

*^^GAO Study, response #34. 

**Cofer Study, at 223. 

*^GAO Study, response #36. 

*'°GAO Study, response #36-7. 

*"GA0 Study, response #36-5. 

^'^1992 AU Survey, response 15a. 



918 Verkuil, Gifford, Koch, Pierce, and Lubbers 



responded to the Cofer Study that productivity requirements affected the 
quality of their decisions.*'^ The 1992 ALJ Survey found that 78% of the SSA 
AUs think that caseload interferes with quality, with 36% thinking it 
frequently does so.*'* More than one-third of the AJs think that workload 
burdens interfere with quality often or almost all the time. 

The GAO Study reported that AUs would generally favor a uniform 
weighted caseload index, similar to that used in federal district courts.*'^ 

The GAO Study asked whether AUs would consider it to be an 
infringement on their independence for the administrative review authority to 
advise them that they had written illogical opinions, misapplied the law, 
inaccurately cited the facts, written a poor quality opinion, or written a wrong 
opinion.*'^ About one-third of the AUs would consider any of these to be an 
infringement on their independence. However, it appears that review 
authorities very rarely do any of these. *'^ Of these, only communication that 
the law has been misapplied was noted by more than 10 percent of the time. 
The others occurred only between 1 and 4% of the time.*'* 

2. Policy Relationship 

The real questions about the relationship between the agency hierarchy and 
the adjudicators focus on policy control. The policy relationship raises 
questions of special complexity. Various fairness values, including uniformity 
of results, require that the agency have dominance over policy questions. The 
adjudicators themselves recognize the need for policy guidance. The problem 
lies at the margin between mechanisms for ensuring application of the agency's 
policy and overreaching interference in the adjudicators' independent 
judgment. Thus, we explore the policy relationship from two perspectives: 
the adjudicators' views of the adequacy of agency policy guidance and their 
views of the interference in independent judgment in the name of policy 
dominance. 



*'^Cofer Study, at 171. 

*'*1992 AU Survey, SSA only, response 15a. 

*'^GAO Study, response #37. 

*'^jAO Study, response #43. 

*'''GA0 Study, response #42. 

*'*GAO Study, response #42. 



The Federal Administrative Judiciary 9 1 9 



a. Adequacy of Agency Policy Guidance 

Burger reported that AUs did not find lack of policy direction to be a 
problem.*'' About three-quarters said that it was not a problem and another 
19% found it to be only somewhat a problem. Only 6.5% found it to be a 
significant problem. Burger observed, however: 

While only a small percentage of the ALJs deemed it of 
significant consequence, we had not anticipated that so many 
AUs would acknowledge a need for clearer direction. 
Conmients by the AUs suggested that at issue was not the 
need for specific instruction but for greater consistency on 
the part of the agency head which would produce great legal 
certainty. Judges at the CAB, FCC, FERC, ICC, EPA, and 
at some of the smaller or single-judge agencies took their 
agency to task for failing to show a clear sense of policy 
direction.*^ 

The 1992 AU Survey found that current AUs see lack of policy direction 
as more of a problem. Thirty-five percent think it is occasionally a problem 
and another 9% think it is a frequent problem.^' 

AJs do not generally believe that lack of policy guidance is a problem. 
Two-thirds of the AJs report that lack of policy direction from the agency is 
not a problem.*^ Still, one-third do find this to be either sometimes or 
frequently a problem. Similarly, about three-quarters do not agree that 
inadequate policy guidance is a serious problem at their agency but about one- 
quarter agree or strongly agree that inadequate policy guidance is a problem at 
their agency.^ 

The 1992 AU Survey found that agency regulations are the primary source 
of policy direction. Ninety-six percent of the AUs think such regulations are 
very important to their decisions, with the rest finding regulations somewhat 
important.^ Almost 90% of the AJs feel that agency regulations are very 
important to their decisions and the rest think those regulations are moderately 
important.^ 



*"Burger, chart at 346, item 8. 
*^urger, at 353-354. 
^'1992 AU Survey, response 14e. 
*^AJ Survey, response 24e. 
*^AJ Survey, re^onse 26i. 
*^1992 AU Survey, response 16b. 
*^AJ Survey, response 16b. 



920 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The impact of precedent in administrative decisionmaking has always been 
controversial. In agencies with few cases and thorough opinions by both AUs 
and the review authority, some commitment to precedent or at least a 
requirement of reasoned change of position seems inevitable. In "mass justice" 
programs, such a commitment is not only rarely feasible but may, in fact, 
create injustice where as a practical matter only a few parties are aware of the 
prior decisions. 

For this reason, it is useful to note the difference perceived by SSA AUs 
and non-SSA AUs in the influence of prior agency decisions. Burger found 
that 87% of the non-SSA AUs consider published agency decisions a very 
important source of policy.*^ Burger reported that about 70% of the SSA 
AUs found published decisions to be only moderately important or not at all 
important. »^ The 1992 AU Survey found that almost all non-SSA AUs 
consider that published agency opinions are important, with 84% saying they 
are very important. ^^ SSA AUs rate such opinions important less often, with 
only 58% considering those opinions to be very important.^ About 90% of 
the AJs consider published agency opinions to be very important to their 
decisions.^ 

Cofer found that SSA AUs favored an effort to create a system of 
organizing representative cases in order to make using prior decisions practical 
in the SSA context.*^' The impracticality of systematic access to these 
decisions may be one major reason precedent carries less weight with SSA 
AUs. 

The Cofer Study suggested that the SSA AUs did not agree with the 
agency's nonacquiescence policy and most would apply a court decision rather 
than the agency's regulations.*^^ 

Burger found that most non-SSA AUs considered communications from 
the chief AU to be either very important or moderately important sources. *^^ 
SSA AUs did not rely on these sources. 

Burger's inquiries regarding "patterns of communication" suggest that 
AUs do not often seek outside advice on difficult cases. *^ Very few of them 



^^urger Study, at 255. 
^''Burger Study, at 255. 
^1992 AU Survey, non-SSA, response 16d. 
^^1992 AU Survey, SSA only, response 14d. 
^•'^AJ Survey, response 16d. 
8^'Cofer Study, at 169. 

*^^ofer Study, at 168. Since her study, SSA has modified its nonacquiesence policy, see 55 
Fed. Reg. 1990 (January 11, 1990), codified at 20 CFR §§404.985, 410.670c, 416.1485 (1992). 
^"Burger Study, at 255. 
*^Burger, chart at 262. 



The Federal Administrative Judiciary 92 1 



consulted either the chief ALT or other AUs for help with such cases. The 
1992 AU Survey found that 21% of the current AUs consult with superiors 
about difficult cases. *^^ SSA AUs are slightly more likely to do so that non- 
SSA AUs.^ About one-third of all AUs consult with other AUs either 
during or before a hearing but few do so frequently. ^^ 

Slightly fewer than 50 % of the AJs report that they rarely or never consult 
with superiors about difficult cases. ^ But more than one-third do so 
occasionally and 17% do so frequently. About half the AJs occasionally 
consulted with other AJs prior to hearing with 29% doing so frequently.*^' 
About 40% of the AJs occasionally consult with other AJs during the hearing, 
and a third do so frequently.**' 

This information suggests that AUs are inclined to resolve individual 
controversy as best they can and let the review stages of the adjudicative 
process resolve the policy questions. AJs seem more willing to seek advice, 
especially from their peers. 

b. Interference with Individual Judgment in the Name of Policy 
Dominance 

Burger inquired into actual interference in AU decisionmaking in several 
different ways. First, she asked the general question whether AUs perceived 
any "threats to independent judgment." She also asked the more specific 
question whether they perceived "pressure for different decisions." She 
observed that virtually all of the AUs who identified any of the these problems 
were employed by the SSA.^' 

As to the question of threats to independent judgment, only 1.5% of the 
non-SSA AUs responded that it was a significant problem and another 1% 
responded that it was somewhat of a problem. ^^ Thus, 97.5% of the non-SSA 
AUs responded that this interference was not a problem. As to the question of 
pressure for difference decisions, only 1 % of the non-SSA AUs responded 
that it was a significant problem and 1.9% responded that it was somewhat of 
a problem. Thus, 97.1% of the non-SSA AUs responded that such 



^^^1992 AU Survey, response lOe. 

^^Compare 1992 AU Survey, SSA only, response lOe with 1992 AU Survey, non-SSA 
response lOe. 

"^1992 AU Sui^ey, responses lOf & g. 

^^AJ Survey, response 13e. 

^■^^AI Survey, response 13f. 

*^AJ Survey, response 13g. 

*^' Burger, at 364. 

*^^Burger, chart at 365. 



922 Verkuil, Gifford, Koch, Pierce, and Lubbers 



interference was not a problem. A plausible conclusion is that the few non- 
SSA AUs who perceive these problems have individual problems with specific 
agencies, and this is not a systemic problem. 

While most SS A AUs did not perceive the specific problem of pressure for 
different decisions, almost half perceived the more vague problem of threats to 
independence."^ As to the more specific question of pressure for different 
decisions, 6.7% of the SSA AUs found it to be a significant problem and 12% 
found it to be somewhat of a problem. As to the more general question of 
threats to independence, 27.9% of the SSA AUs found it to be a significant 
problem and 16.7% found it to be somewhat of a problem. Thus, only 55.4% 
of the SSA AUs felt no threats to their independence. The Cofer Study 
confirmed the existence of this perception on the part of SSA AUs. She 
reported that 70. 1 % of the SSA AUs agreed that there was agency pressure 
against allowances.**^ However, this pressure was not overt or direct. *^^ 

The 1992 AU Survey did not find as positive a situation. Fifteen percent 
of the non-SSA AUs responded that threats to independence are a problem, 
with 8% saying it is frequently a problem.*^ Nine percent responded that 
pressure to make different decisions is a problem, with only 4% fmding it to 
be a frequent problem.®^^ In contrast, 34% of the SSA AUs find threats to 
independence to be a problem, with 21% saying it is a frequent problem.*^ 
Twenty-six percent fmd they are under pressure to make different decisions, 
with 10% finding that to be a frequent problem.*^' 

AJs report pressure to be less of a problem than current AUs. About 80% 
report that pressure for different decisions is not a problem, and most of the 
remainder report that it is only occasionally a problem.*^ Only 2% reported 
that it is frequently a problem. About 70% report that threats to independence 
of judgment are not a problem.*^' However, 18% report that it is occasionally 
a problem and 10% reported that it is frequently a problem. 

Taken together, these data suggest that protection aimed at ensuring 
independence in addition to that now available must be agency, or perhaps 
even individual, specific. That is, across-the-board solutions are less likely to 
solve the current problems. A solution capable of sensitivity to individual 

*^^Burger, chart at 365. 

«^Cofer, at223. 

"^Cofer, at 171. 

*^1992 AU Survey, non-SSA, response 14m 

"^1992 AU Survey, non-SSA, response 14h. 

*^1992 AU Survey, SSA only, response 14m. 

*^'l992 AU Survey, SSA only, response 14h. 

*^AJ Survey, response 24h. 

^'AJ Survey, response 24m. 



The Federal Administrative Judiciary 923 



circumstances seems much more appropriate. One such approach might be an 
administrative adjudicator ombudsman office, perhaps in OPM, to deal with 
these individual problems. 



G. Attitude Towards Their Jobs 



1. Perception of Their Function 

Obviously, AUs' perceptions about the nature of their office is an 
important determinant of performance. The Sharon Study found that 97 % of 
the AUs considered the conduct of an orderly hearing in a judicial manner and 
assurance of fundamental fairness and due process to be the most important 
activities they perform. ^^^ They also believed this function required an 
extremely high level of judgment. 

Burger asked the open-ended question: "How would you describe your 
role in the administrative process?" Almost all AUs responded in some 
fashion that they were "judges. "*^^ We asked the same question of current 
AUs and they responded in much the same way.*^ We also asked the same 
question of AJs and they, too, responded in much the same fashion. *^^ 

Burger asked a question regarding the description of their role, with 
specific answers.*^ A statement that AUs were "judges," "decision-makers" 
or "factfinders" who were "important" and "independent" received the votes of 
about 82% of those who answered that question. In contrast, only about 5% 
described themselves as a "cog." 

We asked the same question of current AUs. Ninety-six responded that 
"judge/adjudicator" best describes their role."^ More than 90% described 
their role as "decision-maker" and "fact-fmder."*^ Ninety percent said that 
"independent" very much describes their role and the remainder found that 
term somewhat descriptive. ^^^ Few current AUs describe their role as "cog" 



*^^haron, response #57. (The mean rating of 4.8 was by far the highest importance rating 
in the survey, except for preparing a written decision.) 
"^Burger at 296. 
^^1992 AU Survey, response 6. 
*^^AJ Survey, question 22, for example: 
^^urger, chart at 296. 
*^^1992 ALJ Survey, response 21a. 
*^1992 AU Survey, responses 21d & e. 
^^^^1992 AU Survey, response 21c. 



924 Verkuil, Gifford, Koch, Pierce, and Lubbers 



or "referee."**** Most think their role is "impoTtani," with 62% thinking that a 
very apt description of their role.^' 

We asked the same question of AJs, again with similar results.^ Virtually 
all think "judge/adjudicator," "decision-maker," and "fact-finder" are very 
appropriate descriptions of themselves. Ninety -one percent describe 
themselves as independent. Almost 90 % think they are important, but 3 1 % 
feel that description is only somewhat appropriate. Perhaps more telling is the 
fact that three-quarters think a description as a "cog" is inappropriate and only 
3% think that description very appropriate.^ Only one-third feel "wearer of 
three hats" is either a very appropriate or somewhat appropriate description. 
Few find the description of "referee" as more than somewhat appropriate, with 
44% saying it is inappropriate. 

We asked the current AUs to rank certain aspects of their function. The 
three most important are marshalling the facts (85%), making credibility 
determinations (71%), and guaranteeing due process (68%).^ When asked 
the most important influences on their decisions, 78% said evaluation of the 
facts, 58% said applicable statutes, and 53% said published agency 
regulations.^ 

When asked to rank the three most important perceptions of their job, 86% 
of the AJs rank marshalling facts among the top three and 76% so rank 
guaranteeing due process.^ When asked to rank the three most important 
influences on their decisions, 84% selected the applicable statutes, 69% 
selected judicial precedent and 54% selected evaluation of facts. *^^ Again AJs 
see their job in much the same way as other judges. 

In contrast, neither group of adjudicators sees its function as significantly 
involved with policymaking. The studies indicate that AUs do not often seek 
to effect changes in agency policy. Burger found that only 4.5% of the AUs 
frequently suggest policy changes and only 31.5% occasionally do so.^ The 
1992 AU Survey found that 2% of the current AUs frequently suggest policy 
changes and another 22% occasionally do so.^ 



^1992 AU Survey, response 21g & h. 

^4992 AU Survey, response 21b. 

^^AJ Survey, response 23. 

*^One of these described themselves as a "vital cog.' 



^1992 AU Survey, response 9. 
*^1992 AU Survey, response 16. 
**^AJ Survey, response end of 15. 
^^AJ Survey, response end of 16. 
***Burger, chart at 267. 
®*^1992 AU Survey, response 10k. 



The Federal Administrative Judiciary 925 



AJs are slightly more likely to suggest policy changes. Whereas 54% 
report that they rarely or never do so, 44% reported that they do so on 
occasion.^ 

In short, the vast majority of both AUs and of AJs perceive themselves as 
judges, performing the same functions as judges in the same manner and under 
the same constraints. Indeed, Burger observed: 

Although key differences between AUs and other federal 
judges have been noted, our data have provided no evidence 
that the art of judging is any more mechanical when practiced 
within the administrative process than within the federal 
judicial system. It was therefore not surprising to see that 
several of the problems which AUs identified in their work 
related to the central judicial system of finding and applying 
the law.^71 

She goes on to state: "One is struck by how many problems administrative 
law judges share with the judges of our Article III courts. "^^ One might 
extend that remark to AJs. 

2. Comparison with Other Adjudicators 

The 1992 AU Survey asked current AUs to compare themselves with 
federal judges and non-AU adjudicators.^ Most feel they have less authority 
and prestige than federal judges. They feel more bound to agency policy and 
less independent. They think they have less impact on public policy. 
Otherwise, they do not make a clear distinction. They feel they have more 
authority, prestige, and freedom in reaching a decision and independence than 
AJs. They feel they handle more complex cases and more than half feel they 
have a greater caseload burden. More than half think they have more impact 
on public policy. They generally think they are bound to agency policy 
equally or less than are AJs. 

We asked the AJs to compare their position with that of AUs.^^'* They 
divided almost equally among greater, the same or lesser regarding 
independence from agency supervision and authority. More than two-thirds 
think they have less status than AUs. Almost 60% think they have a greater 



870 



AJ Survey, response 13k. 



^^'Burger, at353. 
^'^Burger, at 362. 
*^1992 AU Survey, response 30 & 31. 

874, 



AJ Survey, response 28. 



926 Verkuil, Gifford, Koch, Pierce, and Lubbers 



caseload burden. About half think they have the same duty to follow agency 
policy, but about 28% think they had less of a duty to do so. 

3. Attitude Towards Proposed Reform Ideas 

The 1992 AU Survey found that 76% want separation from the agency. ^^ 
Seventy-six percent think the absence of a corps is a problem. *^^ The GAO 
Study found that 73 % of the AUs agreed that an independent corps would be, 
to a great extent or better, an improvement.*^ The Cofer Study found that 
83% of the SSA ALJs favored the idea of an AU corps.*^ The Burger Study 
found almost 70% favored an independent corps. ^ Less than half, however, 
favored an independent corps without substantive distinctions among ALJs. 
They apparently recognized the need for specialization and expertise. 

The GAO Study found that about 85% of the ALJs disagreed with the 
proposal for set terms for ALJs.*** Even with renewal upon a review by an 
independent panel of attorneys, most AUs would not favor such a program.**' 

A large percentage, 66%, favored an administrative trial court, completely 
judicializing the administrative adjudicators.**^ The GAO Study found that 
72% favored to a great extent or better the establishment of an administrative 
court system. Burger observed: "[Cjritics are equally concerned that the end 
result of removing judicial functions from the agencies would be good 
procedures and bad policy."**^ We might observe that procedures that create 
bad policy are not "good" no matter how much they conform to our legal 
customs. 

A prior study of the SSA in 1977 reconmiended a three- ALJ panel that 
would preside over hearings and make the determination by majority rule.**^ 
The Cofer Study reported that 82% of the SSA AUs opposed this 
recommendation . **^ 



*^^1992 AU Survey, response 23 i. 
*^<^1992 AU Survey, response 23k. 



*^GAO Study, response #7-1. 
*^Cofer, at 227. 
*^urger, chart at 414. 
**°GAO Study, response #11. 
**'GA0 Study, response #12. 
**2Burger, chart at 414. 
**^Burgerat412. 

**^Jerry Mashaw et al.. Social Security Hearings and Appeals: A Study of the Social 
Security Administration Hearing System 43-45 (1978). 
**^Cofer Study, at 226. 



The Federal Administrative Judiciary 927 



The GAO Study found that few AUs believed that eliminating the APA 
formal hearing requirements for certain programs would result in an 
improvement in the administrative process.^ SSA ALJs surveyed in the Cofer 
Study believed in formalized procedures. ^^ She observed: 

Forty-one percent of [those who favored formal proceedings] 
indicated that they felt the claimant's rights would be better 
protected in a more formal hearing environment, while 
almost 20 percent felt a more formal hearing would be a 
more efficient hearing. For the AUs disagreeing with the 
notion of a more formal hearing, the most common reason 
was that the AUs would seem less approachable and that the 
formality would tend to intimidate the claimant. Close to 30 
percent felt that formality would hamper efficiency. Thus, 
AUs on both sides of this issue viewed it from the claimant's 
perspective but with very different outcomes.^ 

Cofer found that about two-thirds of the SSA AUs supported adversarial 
hearings and that those AUs felt that an adversarial environment would "result 
in evidence being presented in a clearer and more accurate fashion. ^^ 

Thirteen percent of the current AUs think that compromise of formal 
procedures is frequently a problem; the remainder divided fairly evenly over 
whether it was a problem at all.^*' Seventy-six percent feel that increase in 
judicial power is necessary.*^' 

Over three-quarters of the AJs do not believe failure to follow formal 
procedures is a serious problem.^ Only 5% strongly agree that it is a serious 
problem. 



H. Summary of Observations About Perceived Problems 

Questions about independence suggest that AUs perceive some problem. 
Seventy-eight percent find a need for independence, with 59 % finding it to be 



^^GAO Study, response #7-5. 
^^Cofer Study, at 160. 

^Cofer Study, at 162. 
^1992 AU Survey, response 23 f. 
^'1992 AU Suivey, response 23h. 
^'^AJ Survey, response 26 f. 



928 Verkuil, Gifford, Koch, Pierce, and Lubbers 



very much a problem.^ Sixty-one percent think that "agency interference" is 
a problem, with 26% finding it to be a very serious one.^ 

AJs seem to have less concern about the need for independence. They split 
about equally as to whether this is a serious problem, with 23% strongly 
agreeing.^ Fewer find "agency interference" a problem, with 11% strongly 
agreeing that it is a problem.^ 

As discussed, few AJs and non-SSA AUs feel lack of policy guidance is a 
problem.^ SSA AUs are slightly more likely to see this as a problem.^ 

However, Burger found that almost half the AUs considered ambiguity in 
the law to be somewhat of a problem, although only about 8% found it a 
significant problem.^ Further inquiry suggests that this problem seemed to 
result much more from problems with the statutes than with agency regulations 
or policy direction.** The 1992 AU Survey finds that ambiguity is a 
problem, but only 19% of the current AUs find it to be a frequent problem.*^' 
In contrast, 70% of the AJs report that ambiguity in the law is occasionally a 
problem, with 13% finding it frequently a problem.*^ 

Satisfaction with management-type relationships with the agency is more 
ambiguous. In the Burger study, approximately one-third chose each of the 
three responses—significant problem, somewhat a problem, or not a problem- 
concerning whether overburdening caseload or pressure for faster decisions 
were problems.*^ Current AUs find these to be a problem, with only 20% 
finding caseload not a problem and 40% finding pressure to make faster 
decisions a frequent problem.*^ Pressure on output is perceived as much more 
of a problem in the SSA than in other agencies, with 41 % of the SSA AUs 
finding caseload a frequent problem and 54 % of them finding pressure to make 
faster decisions a frequent problem. *^^ 



^1992 AU Survey, response 23b. 
^1992 AU Survey, response 23a. 



^^^AJ Survey, response 26b. 

^^AJ Survey, response 26a. 

^^Compare AJ Survey, response 24a with 1992 AU Survey, non-SSA, response 14e. 

^1992 AU Survey, SSA only, response 14e. 

^^urger, chart at 346, item 4. 

*^urger, chart at 356. 

^'1992 AU Survey, response 14b. 

*^AJ Survey, response 24b. 

*^^Burger, chart at 346. 

*^1992 AU Survey, responses 14c & g. 

*^^1992 AU Survey, SSA only, responses 14c & g. 



The Federal Administrative Judiciary 929 



AJs are slightly less concerned with pressure for faster decisions,*** and 
slightly more concerned with having too great a caseload.*'^ About a third find 
lack of procedural uniformity within the agency as a problem, but only 3 % 
think it is frequently a problem.^ More than half think the cases are overly 
complex in the technical sense, but only 5% think that is frequently a 
problem. ^'^ 

Responses regarding "ambiance," such as status or hearing facilities, are 
ambiguous. ^'° Current AUs seem satisfied with their salaries.^" 

The AJs divided at about a third each for strongly agree, agree, or disagree 
as to whether the following are serious problems: lack of status, poor image; 
inadequate hearing facilities and staff support; poor salaries, lack of perquisites 
and need for increase in judicial powers. ^'^ About two-thirds of the AJs are at 
least sometimes bothered by the perception that others who perform the same 
work receive more deference, with more than 45% thinking that often or 
always. ^'^ 

AUs seem as likely as many critics of administrative adjudications to count 
delay as a serious problem. Burger found that only about one-quarter 
considered it a serious problem, but one-half considered delay somewhat of a 
problem. '■'* The GAO Study found that about two-thirds considered 
"unnecessary" delay to be a problem. ^'^ The 1992 ALJ Survey found that 
almost all current AUs think delay is a problem, with 41% finding it a 
frequent problem.^'* 

AJs seem somewhat less troubled by delay. ^'^ Only about 20% think that it 
is frequently a problem. About two-thirds think that it is somewhat of a 
problem. 

The GAO Study asked about the reasons for delay. Several factors 
contributed to the delay in the AUs' opinions. Tending to rank first or second 
in their estimation was the conduct of the parties.^'* About one-third ranked 



*^AJ Survey, response 24g. 

^'^AJ Survey, response 24c. 

**AJ Survey, response 24k. 

*^AJ Survey, response 24d. 

''^Generally, 1992 AU Survey, response 23. 

'"1992 AU Survey, response 23e. 

"^AJ Survey, response 26c, d, e & h. 

"^AJ Survey, response 27j. 

"^Burger, chart at 346. 

''^GAO Study, response #15. 

''^1992 AU Survey, response 14a. 

''^AJ Survey, response 24a. 

''*GAO Study, response #16. 



930 Verkuil, Gifford, Koch, Pierce, and Lubbers 



intentional delay by the parties as either the primary or secondary cause of 
delay.'*'' This contrasted with the other reasons, in which no pattern emerges. 
Many AUs believed that lack of penalties was a cause for delay. '^ The only 
other reason that gained disproportionate attention as a cause of delay was 
agency review. '^i 

All studies identified areas in which most administrative adjudicators did 
not perceive a problem. It is useful to reiterate these areas in the positive. 

The 1992 ALJ Survey found that few current AUs think lack of procedural 
uniformity or overly complex cases are a problem. Seventy-six percent found 
that questions about procedural uniformity do not identify a problem or are not 
applicable.'^ More found complex cases to be a problem, but only 9% found 
it to be a frequent problem. '^ 

Burger found that few AUs thought too close supervision or pressure to 
make different decisions were problems. ^^^ Many of those who perceived these 
problems were with the SSA.*^ Overall, current AUs do not have these 
problems, but the responses are not as positive.'^ These responses suggest 
that most AUs do not face undue pressure on their substantive decisions. AJs 
also have little problem with too close supervision and pressure to make 
different decisions. ^^^ This may indicate that the relationship with agency on 
substantive grounds is satisfactory. 

Burger found that AUs did not generally feel a lack of policy direction. '^ 
Three-quarters found it was not a problem and most of the remainder found it 
only somewhat of a problem. The 1992 AU Survey found that 44% of all 
AUs consider this to be a problem, with only 9% finding it to be a frequent 
problem. ^29 Similarly, three-quarters of the AJs consider inadequate policy 
guidance not to be a problem, and most of the remainder said it is only 
somewhat of a problem.'^ 



'■'GAO Study, response #16-4. 

'^GAO Study, response #16-5. 

'^'GAO Study, response #16-2. 

^^1992 AU Survey, response 14j. 

^^1992 AU Survey, response 14d. 

'^Burger, chart at 346. 

'^Burger, chart at 365. 

^^1992 AU Suivey, responses 14 h & 1. 

^^AJ Survey, responses 24h & 1. 

'^Burger, chart at 346. 

^^1992 AU Survey, response 14e. 



930 



AJ Survey, response 26i. 



The Federal Administrative Judiciary 93 1 



V, The Selection Process For Agency Adjudicators 



A. Development of the ALJ Selection Process 

Prior to enactment of the Administrative Procedure Act in 1946, federal 
agencies employed a variety of hearing officers to preside over agency 
proceedings and to make decisions. The APA standardized the procedures for 
formal adjudications conducted by the agencies. It created a special class of 
federal employees to conduct these trial-type hearings and to render initial or 
reconmiended decisions in such cases. These employees, known today as 
administrative law judges (originally called examiners), were given various 
protections and guarantees of independence as described elsewhere in this 
report. 

The APA did not clearly set forth the procedure for appointing these 
hearing officers. It provided that "there shall be appointed by and for each 
agency as many qualified and competent examiners as may be necessary."*^' 
Thus, as noted by then-professor Antonin Scalia, "it was evidently 
contemplated that the Civil Service Commission would establish qualifying 
requirements by general rule, and that the agencies would then select from 
among all individuals who met those requirements. "^^ 

Instead, however, the Commission issued regulations in 1947 that 
established a system that went beyond the mere issuance of qualifying 
requirements; it also provided for ranking individual applicants and limiting 
agency selection from among the three top-ranked eligible applicants. This 
system was followed (with some variations and refmements) until 1978 by the 
CSC, and since 1978, by its successor agency, the Office of Personnel 
Management. 

At first, in 1947, concerns about how new applicants should be handled 
were obscured by the controversy concerning reexamination of the 196 
incumbent examiners at the agencies then coming under the APA.^^ 



'^'Pub.L. No. 79-404 §11. 

'^^Scalia, The AU Fiasco-A Reprise, 47 U. Cm. L. Rev. 57, 59 (1979). 

'^^The following account is derived from Thomas, The Selection of Federal Hearing 
Examiners: Pressure Groups and the Administrative Process, 59 Yale L. J. 431 (1950). See 
also Fuchs, The Hearing Examiner Fiasco Under the Administrative Procedure Act, 63 Harv. L. 
Rev. 737 (1950); Macy, The APA and the Hearing Examiner: Products of a Viable Political 
Society, 11 Fed. Bar J. 351 (1967); and Musolf, Federal Examiners and the Conflict of Law 
AND ADMlNiypRATlON. The Johns Hopkins University Studies in Historical and Political Science, 



932 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Beset by political pressures, the CSC devised one procedure to reexamine 
incumbent examiners and another to handle new applicants. A six -member 
Board of Examiners was appointed to process the applications from 
incumbents. Although the Board was also given jurisdiction over new 
applicants, the Commission appointed nine regional "associates" to interview 
and preliminarily grade applicants from around the country. 
Reconmiendations by the associates were then acted upon by the Board of 
Examiners. Decisions by the Board were then issued by the Commission. 

In this initial round of examination the CSC divided the examiner positions 
into five grades, with higher grades given for those with more general legal or 
judicial experience as opposed to specialized subject-matter experience. Six 
years of experience was required, consisting of responsible involvement in 
preparing, presenting or hearing cases in courts or regulatory bodies. An 
applicant was rated based on his or her description of that experience, 
submissions of case materials, information obtained through personal 
qualifications investigations, and performance at an interview before the 
Board. Agencies were to make their selections from five separate registers, 
each containing the names of applicants deemed eligible for the five respective 
grades of examiner positions. 

When the results of the examination were announced in 1949, more than 
25% of the incumbent examiners were deemed unqualified.^ Others were 
assigned a grade level that rendered them ineligible for appointment at their 
agency. New applicants (and certain incumbents without civil service status) 
were placed in rank order on each of these registers, and the CSC gave 
agencies about 3 months to replace the unqualified or ineligible examiners. 

However, the resulting furor among the incumbents and their supporters 
(especially at the NLRB where 27 of 41 incumbents were either disqualified or 
demoted) led to appeals. Congressional pressures, the resignation of the Board 
of Examiners, and the eventual reinstatement of almost all of the incumbents. 
In 1950 new hsts of eligibles for the five registers (now GS-11 through GS-15) 
were established, but very few appointments were made, as most incumbents 
retained their positions. ^^ 

The examination was then closed until August 1954.^ All existing 
eligibles were required to reapply. The qualification and rating factors 
remained the same, but oral interviews were not required and the personal 

Series LXX, Number 1, The Johns Hopkins Press, 1953; reprinted by Greenwood Press, Inc., 
Westport, CT, 1979. See also discusion at Chpater 11(H), supra. 

'^Macy, supra note 933, at 367. 

^^W. at 368. 

"^^See DuUea, Development of the Personnel Program for Administrative Law Judges, 25 
ADMIN. L. Rev. 41,43 (1973). 



The Federal Administrative Judiciary 933 



qualifications investigation was replaced by more informal confidential written 
inquiries or references ("vouchers") of people who knew the applicant. In 
October 1955, the examination was reopened on a continuous basis. '^^ By 
1962, when all eligibles were assigned updated ratings, there were about 500 
hearing examiners employed by 22 agencies, ranging from GS-12 to GS-IS.'^ 

A series of government studies had, in the meantime, been scrutinizing the 
hiring process for hearing examiners. '^^ President Eisenhower's Conference 
on Administrative Procedure in 1954 made a series of recommendations urging 
the CSC to create a Bureau of Hearing Examiner Administration (headed by a 
five-member committee) to oversee the program. In response, the CSC did 
formally designate a single official to oversee all hearing officer activities. 
The Conference also urged higher grades and pay for examiners. The 1955 
Hoover Commission urged removal of the examiners from the agencies and the 
transfer of the program from the CSC to a proposed administrative court 
within the judicial branch. This proposal went unheeded. 

More influential was the report of President Kennedy's (temporary) 
Administrative Conference of the U.S. in 1962, which recommended 
continued management of the program by the CSC (with evaluation by a 
successor Administrative Conference). (The Conference's Committee on 
Personnel had recommended removing the hearing examiner program from the 
CSC to a new, independent office.) The Kennedy Conference also urged that 
the grades for hearing examiners be raised, collapsed into two, and limited to 
one grade per agency. With respect to selection, it urged that candidates be 
evaluated on the basis of training, experience and oral and written 
examinations with leading lawyers participating in the evaluation. It 
recommended exempting the selection of hearing examiners from the veterans 
preference statute and also urged that the resulting register be unranked and 
that the initial appointment be probationary. 

The Kennedy Conference recommendations quickly led to CSC's 
appointment of a Director, Office of Hearing Examiners and an Advisory 
Committee on Hearing Examiners. The Advisory Committee prepared a series 
of specific recommendations on the recruitment and examination process, 
which resulted in a new examination with higher general standards of 
qualification and provisions allowing individual agencies to require additional 
special qualifications for appointment. The Conference's recommendations 



'^'^See Macy, supra note 933 at 423 (Chairman of the Civil Service Commission at the time 
provides a very deUiled chronolgy of the Hearing Examiner Program from June 1946 - June 
1966, at 412-428). 

'^Dullea, supra note 936 at 44. 

'^^The following summary is taken from Macy, supra note 933 at 374-377. 



934 Verkuel, Gifford, Koch, Pierce, and Lubbers 



against use of veterans preference and in favor of an imranked register and 
probationary periods went unheeded. 

The resulting examination, announced in January 1964, set the pattern for 
the examination procedure that has remained in effect (with some refinements) 
until today. ** It required bar membership and increased the number of 
required years of qualifying experience from 6 to 7. It also called for a written 
"mock" decision and oral interviews by three-member panels. On a lOO-point 
scale, a passing score of 80 (before the addition of 5 or 10 veterans preference 
points were added) was required. The examination was to be opened to new 
applicants 2 months each year. 

By 1973 the system had been refined even more.^' Two registers were 
established, at GS-15 and GS-16 levels. Eligibles had to first show the 
requisite qualifying experience: bar membership for at least the last 7 years, 
and an aggregate of at least 7 years of either (1) judicial experience; (2) the 
preparation, trial, hearing or review of formal administrative law cases at the 
federal, state, or local level, or court proceedings relating thereto; or (3) the 
preparation and trial or the preparation and appeal of cases in courts of 
unlimited and original jurisdiction. At least two of those aggregate 7 years of 
qualifying experience had to have been within the preceding 7 years. In 
addition, 16 categories of nonqualifying experience were specified in the 
examination announcement. '^^ Finally, about half of the hiring agencies 
formally required special subject-matter expertise for selection, and the CSC 
required documentation of such experience for at least 2 years of the 7 
preceding the application. (This process is known as "selective 

certification.")*'^ 

To establish this basic qualifying experience, applicants were expected to 
supply voluminous information about their previous employment record, the 
two most important cases worked on and names and addresses of at least 20 
individuals to be contacted for personal reference inquiries ("vouchers"). CSC 
personnel rated applicants' experience and the results of the vouchers on a 100- 
point scale. The score was adjusted up or down after the written decision and 



'^^^llea, supra note 936 at 44-46. 

'*^^See Announcement No. 318, "Administrative Law Judge" U.S. Civil Service Commission 
(October 1973). 

**^rhe8e were: investigator, adjudicator (sic), rating specialist, claims reviewer, insurance 
adjuster, conferee, state unemployment insurance supervisor, arbitrator, mediator, moderator, 
teacher or professor, hearing officer in informal or conference proceedings, clerk of court, legal 
consultant, officer of any court not of record, and contract officer. See U.S. Civil Service 
Commission, Announcement No. 318 (October 1973), at 5-6. 

^^See Miller, The Vice of Selective Certification in the Appointment of Hearing Examiners, 
20 Admin. L. Rev. 477 (1968). 



The Federal Administrative Judiciary 935 



oral interview were scored. At that point, veterans preference points, if any, 
were added. The Commission normally required a score of 80 or above for 
eligibility.*^ Those eligibles with the types of special expertise recognized by 
the selectively certifying agencies were, in effect, asterisked on the registers, 
and those agencies were permitted to select from the asterisked eligibles.*^^ 
(Selection by the agencies from the registers was subject to a "rule of three" 
and other constraints, described below.) 

These general standards proved to be quite difficult to meet. In 1973 the 
Director of CSC's (renamed) Office of Administrative Law Judges reported 
over 4,000 applications since 1963 with only 20% eligible for inclusion on the 
register. About 10% of those applicants had actually been appointed. (There 
were 780 AUs at that point). '^^ 

This procedure was in effect until 1984, when the experience requirements 
were eased and simplified. (See Appendix V C for a summary of the 
changes. )'^^ Applicants are now required to be attorneys with at least 7 years 
of experience "preparing for, participating in and/or reviewing formal hearings 
or trials involving (1) administrative law, and/or (2) litigation at the federal, 
state or local level. "^ In addition, applicants have to show either 1 year of 
qualifying experience equivalent to a position of at least the grade level below 
the position applied for, or 2 years of experience equivalent to a position two 
grade levels below. '^^^ The Announcement also eliminated some of the listed 
types of nonqualifying experience*^ and specifically states that experience as a 
law clerk, adjudicator, arbitrator, mediator, or professor of law may provide 
requisite qualifying experience. 

Another change made in the 1984 Announcement was to eliminate the 
formal selective certification procedure for agencies who wish to hire 
applicants with specialized expertise. Instead, applicants are simply told to 
indicate their specialized expertise. Agencies are permitted to justify "by job 



'^Dullea, supra note 936 at 45. 

^'^ Announcement No. 318, supra note 941 at 9, 18-21. 

*^ullea, supra note 936 at 46-47. 

**'For a deuiled description, see Sharon and Pettibone, Merit Selection of Federal 
Administrative Law Judges, 70 Judicature 216 (1987). 

^^See Examination Announcement No. 318, U.S. Office of Personnel Management, Office 
of Administration Law Judges (May 1984) at p. 5. 

^Vd. at p. 6. The new pay classification, removing ALJs from the GS scale will necessitate 
acme changes in this requirement. See 5 U.S.C.A. §5372a(a) (1992), Pub. L. No. 101-509, 
November 5, 1990; OPM interim regulations, 56 Fed. Reg. 6208 (February 14, 1991); final 
regulations, 57 Fed. Reg. 1367 (January 14, 1992); to be codified at 5 CFR §930.210. 

'*/<f. at p. 7. See note 942, supra. Specifically, it says that such experience may provide the 
required "knowledge, skills and abilities." 



936 Verkuil, Gifford, Koch, Pierce, and Lubbers 



analysis" that special qualifications enhance performance, and, if OPM agrees, 
to give "priority consideration" to applicants with those qualifications.'^' 

The 1984 examination also continued the four con^x)nents of the procedure 
that date back to 1964: the evaluation of the applicant's experience, now based 
on a document called the "Supplemental Qualifications Statement" (SQS),'"^ 
the vouchers, here called the personal reference inquiry (PRI), the written 
demonstration (WD), and the panel interview (PI).^^ The method of rating 
some of those components and their relative weights, however, have changed. 

Prior to 1984, the applicant's experience counted for 60% of the score, the 
PRI 40% and the WD and PI served only as minor adjustments of the 
preliminary score.'^ In 1984, OPM's Office of Administrative Law Judges, as 
part of its revamping of the examination, announced that the SQS would 
comprise approximately 40% of the fmal rating while the other three 
components would each comprise approximately 20% (not including veterans 
preference points).'" By 1988, however, OPM indicated that it was assigning 
63% of the weight to the SQS and 12.33% to the other three parts.'^ In 
December 1990, OPM announced that it was considering a new ratio as 
follows: SQS (50%), PRI (10%), WD (20%) PI (20%). '57 These (and other) 
changes were proposed for implementation in December 1990, but were 
delayed pending the completion of the present study. 

OPM has been quite diligent in the last decade attempting to validate each 
of the component parts of its examination. The effort began in 1979, partially 
as a response to increasing numbers of challenges by unhappy applicants that 
the examination was biased in one way or another.'^ At that time 60% of the 



'^'W. atp.8. 

^^^See "Supplemental Qualifications Statement for Administrative Law Judge Positions," U.S. 
Office of Personnel Management (February, 1984). 

'"/d. at p. 11-13. 

^^See Lubbers, Federal Administrative Law Judges: A Focus on our Invisible Judiciary, 31 
Admin. L.J. 109, 114(1981). 

'^^U.S. Office of Personnel Management, Staffing Group, Office of Administrative Law 
Judges (Winter 1983-1984) p. 5. 

'^^emorandum from Craig B. Pettibone, Assistant Director for Administrative Law Judges, 
OPM, to Chief Administrative Law Judges, Personnel Directors, Bar Associations and OPM 
Regional Directors, Subject: Status Report on Administrative Law Judge Examination, March 
16, 1988 at p. 1. 

^^^See Announcement of Revisions in Administrative Law Judge Examination, 55 Fed. Reg. 
52339, 52340 (December 21, 1990). 

^^See Comments on Revised ALJ examination by Craig B. Pettibone, Assistant Director for 
Administrative Law Judges, before Chief ALJs (OPM staff paper), September 15, 1983 at p. 1-2. 
("Revising the ALJ examination. . . will assure that we have a job-related examination which can 
be defended against complaints from disgruntled applicants.") Perhaps the most persistent critic 



The Federal Administrative Judiciary 937 



applicant's score was based on the experience rating. Applicants were 
somewhat mechanically given 50/55/60 points based on their previous or 
current job title or level. OPM wished to begin rating applicants on the 
quality of experience in the job rather than simply its title. 

With the help of advisory panels of AUs and personnel specialists, OPM 
identified 141 tasks performed by ALis.*^^ After surveying AUs on the 
relative importance of these tasks, OPM identified 84 of them as critical. The 
agency then sought to determine what types of knowledge, skills and abilities 
(KSAs) were necessary to perform these critical tasks. Eighteen KSAs were 
further winnowed to the following five, which became the basis for evaluating 
applicants' SQS: knowledge of rules of evidence and trial procedure; 
analytical ability, decisionmaking ability; oral communication ability and 
judicial temperament; and writing ability. Benchmarks of actual achievements 
ranging from 1 (unacceptable) to 5 (outstanding) for each KSA have been 
developed by OPM and have been incorporated into rating guides used by 
OPM examiners who review the SQS application forms submitted.*^ (A sixth 
KSA, organizational skills related to management of caseloads, has been 
tentatively approved by OPM and benchmarks are now being developed. )'^' 
The effort to "validate" and refine the SQS, has, if nothing else, led to judicial 
blessing of this portion of the examination as a "valid employment practice. "^^ 

OPM has spent just as much time and energy refming its personal reference 
inquiries (PRIs).*^^ Formerly, applicants were simply asked for 20 references 
and the agency sent "vouchers" to each of them asking for a rating on the 



has been Jesse Etelson. After unsuccessfully applying for certification as eligible to become an 
AU in 1970, Etelson began a series of appeals and FOIA requests that led to eligibility on the 
GS-15 register in 1974 but a denial of eligibility on the GS-16 register. He then brought suit 
against OPM on the ground that his experience was arbitrarily rated too low when compared to 
private attorneys with similar experience. He eventually prevailed on that point, Etelson v. Office 
of Personnel Management, 684 F.2d 918 (D.C.Cir. 1982). Etelson later was hired as an AU 
and continued his critiques in a law review article, Etelson, The New AU Examination: A Bright, 
Shining Ue Redux, 43 Admin. L. Rev. 185 (1991). Other reported cases include Dugan v. 
Ramsey, 111 F.2d 192 (Ist Cir. 1984) (OPM's practice of not counting trial preparation for cases 
that ultimately settled held to be an abuse of discretion); Friedman v. Devine, 565 F. Supp. 200 
(D.D.C. 1982) (relief denied to applicant challenging OPM's refusal to credit preparation of 
advice memoranda as litigation experience). 

^^^See Sharon and Pettibone, supra note 947 at 217-18. 

'^'W. at 219. 

'^^See Announcement of Revisions, supra note 957 at 52340. 

^^See Curtin v. Office of Personnel Management, 846 F.2d 1373, 1378 (Fed. Cir. 1988) 
(OPM's SQS upheld as valid employment practice, regardless of whether objective tests would 
have been preferable measure of AU qualifications.) 

"^See Sharon and Pettibone, supra note 947 at 220. 



938 Verkuil, Gefford, Koch, Pierce, and Lubbers 



applicant's various qualifications. Over time, OPM became concerned about 
the fact that it was widely known that, given the high weight then assigned to 
this portion of the exam (at that time 40%), only those with the highest ratings 
on the vouchers could rise to the top of the registers. Accordingly, 
sophisticated applicants began advising their references to overrate them. To 
stop this, OPM took two steps: first it began sending questionnaires to 
persons whose names appeared in the application as opposing counsel or 
presiding judges whether or not they were listed as references. Second, and 
most controversially, OPM revamped the questionnaire to use a "forced 
choice" format. This method required the reference giver to choose from 
among groups of statements that might best describe the applicant, all of which 
might appear to be equally favorable, but only certain of which were counted 
as validly relevant to AU behavior. This forced-choice method has been 
criticized as confusing to reference-givers who have no idea as to the impact of 
their answers,*^ but it was laboriously developed by OPM to be bias-free and 
statistically valid. Ironically, however, even as OPM struggled to make this 
part of the exam more meaningful, the agency has consistently lowered its 
weight from 40% to 12.33%— and now has proposed to lower it to 10%.*^ 
Responding to the criticism of the forced-choice format, OPM, in December 
1990, proposed developing a new PRI that will be more "comprehensible" to 
reference-givers.^ 

The written demonstration (WD) and panel interview (PI) components of 
the exam have also undergone a scrubbing by OPM.^^ The WD requires 
applicants to write a decision of the type they might be expected to write as an 
AU, but in a 5-hour time period. The case exercise and grading syllabus were 
developed by a law professor, and points are given based on writing style and 
organization, general opinion-writing skills, and legal analysis of the issues. 
OPM examiners are trained in use of the syllabus. 

The interviews are conducted by panels consisting of an AU, a lawyer 
from the ABA Section of Administrative Law and Regulatory Practice, and a 
senior OPM employee. The interview is a structured, 1-hour format used by 
panelists to develop a consensus score on each of four abilities looked for in 
this part of the examination: ability to communicate orally, ability to make 
decisions; ability to analyze and evaluate situations; and ability to deal with 
people. Training and written guidelines are furnished to the pool of panel 
members around the country. 



964 



See Etcison, supra note 958 at 187. 



'^See text at notes 954-57, supra. 

^^See Announcement of Revisions, supra note 957 at 52340. 

^^See Sharon and Pettibone, supra note 947 at 11Q-11\ . 



The Federal Administrative Judiciary 939 



B. The ALJ Rating and Appointment Process 



1. The Rating Process 

It should be obvious from the foregoing that the examination process for 
new applicants has developed into a complicated, highly-structured process 
that requires a great deal of time and energy on the part of both applicants and 
examiners. OPM has thus had to concern itself with workload considerations 
as it processed applications. Given the large number of applicants relative to 
actual openings, OPM has tried to limit its workload by staging the grading 
process so that only those who score above a threshold on the SQS portion of 
the test are permitted to proceed to the remainder of the exam.^ 

Thus, all applicants who meet the minimum qualifications requirements are 
given a rating on the quality of their experience, based on their SQS form. 
Then, as AU vacancies are identified in various geographic areas, applicants 
who have indicated their availability for those areas and who have scored 
above a certain score (as determined by OPM on an ad hoc basis) are invited to 
complete the written decision and the panel interviews. At that point, personal 
reference inquiries are also sent out. 

Applicants who complete the examination process are assigned a final 
numerical score based on the sum of the weighted scores for each portion of 
the process. The score is converted to a scale of to 100, with 70 required to 
pass.*^ Veterans preference points (5 for nondisabled veterans, 10 for 
disabled) are added to the score, and the applicants are then added to the 
register. Until recently, there were two registers (one for GS-15 ALJ 
positions, principally in the Social Security Administration, and one for GS-16 
AU positions), but with the enactment of AU pay reform in 1990, that 
distinction has been abolished and the two registers have been merged.^ 

In practice, this rating process has led to some administrative headaches for 
OPM. For example, when the exam was opened in summer 1984, 800 
applications were received.'^' About 750 met the legal requirements and all of 
them were given unadjusted scores on their SQS. (Each of the five KSAs used 



^^See 5 CFR §930.203(d) (1991); Examination Announcement No. 318, supra note 948 at 
12-13. 

^^Id. But see Dullea, supra note 936, saying that in his tenure as head of the Office, the 
passing score was 80. The general requirement that rating schedules for competitive 
examinations be scaled from 70-100 is found in the Federal Personnel Manual, Chapter 337 
("Examining System"), Subchapter 2-6 (July 14, 1989). 

^^See note 949, supra. 

^^See Memorandum from Craig Pettibone, OPM, to Chief AUs, et. al (January 31, 1985). 



940 Verkuil, Gifford, Koch, Pierce, and Lubbers 



at that time were rated from 2-5, thus resulting in unadjusted scores from 10- 
25. The mean score was 19.) Based on initial projections of about 12 
vacancies per year, OPM decided to only invite the 70 highest sconng 
applicants (who scored from 21-24) to complete the exam. The other 680 were 
advised that they might be invited to do so later if vacancies occurred in 
geographic areas designated by them in their application, and if their projected 
final rating might be high enough to allow them to compete with those already 
on the register who indicated the same geographical availability. 

Shortly thereafter, the Social Security Administration advised OPM of its 
desire to hire 30 AUs outside the Washington, DC area.*^ OPM responded 
by inviting (1) 100 additional applicants who had unadjusted scores of 19-20, 
and who were 5 -point veterans, and (2) all 70 veterans with 10-point 
preference who had scored less than 20, to complete the exam (if they had also 
indicated geographical availability outside Washington and a willingness to 
accept a GS-15 position). By focusing its second invitation on veterans, OPM 
was, in effect, adding the preference points at the beginning of the rating 
process, rather than adding them once the full rating was computed. OPM's 
third invitation maintained this practice by only inviting nonveterans with an 
SQS of 20 and 5-point veterans who had scored 16-18.9"^ 

After the 1987 opening of the exam, OPM dropped its practice of simply 
using raw SQS scores and began using "maximum projected ratings" 
(including veterans preference) to decide whom to invite to complete the final 
ratings process.^'' With the influx of new eligibles added to the 1984 
applicants, OPM announced that "initial certifications [to the agencies for 
hiring] from the combined groups will, of course, be limited to applicants with 
final ratings in the mid-nineties or above. " Applicants with projected or final 
ratings below 85.25 were "unlikely to be ftirther examined or receive ftirther 
consideration. "^^ 

In 1990, after another internal evaluation of the examination, OPM 
proposed several changes to the procedure described above. ^^ In addition to 
adding a sixth KSA to the SQS concerning caseload management, adjusting the 
relative weights of the four components of the exam, and developing an 
alternative to the forced-choice method of questioning on the PRI, the agency 
proposed to "process all applicants through all parts of the examination and 
add veterans preference points at the end, rather than fully processing those 



'^^See Memorandum from Craig Pettibone, OPM, lor Regional Directors, el. al (May 15, 
1985). 

'^See Memorandum from Craig Pettibone, OPM to Chief AUs, et. al (July 22, 1985). 
'^^See Pettibone Memorandum (March 16, 1988), supra note 956 at 1. 

^^See Announcement of Revisions, supra note 957. 



The Federal Administrative Judiciary 94 1 



applicants with high scores on the SQS as adjusted for veterans preference. "^ 
This change was apparently motivated by the woefully low number of women 
and minority group appointments to AU positions (to be discussed later). 
Because the examination has remained closed, however, these changes have not 
been implemented and OPM is apparently awaiting the outcome of this study 
before reopening the examination. 

2. The Appointment Process 

Once applicants are fully rated and their names and scores entered onto the 
register of eligibles, the agency may make its selection. By regulation OPM 
requires agencies to request a certificate of eligibles when it wishes to fill 
(other than through a transfer), or create, an AU position and be prepared to 
demonstrate, with a workload analysis, that the position needs to be filled or 
created. '^ Thus, OPM, in effect, is the gatekeeper for creation of ALJ 
positions in each agency. OPM will not approve positions for "nonAPA" 
hearings, and its requirement for a workload analysis allows it to second guess 
agency management as to the number of AUs neded for APA hearings. This 
may have been necessary when there was a statutory ceiling on the number of 
"supergrade" (GS-16, 17, 18) positions in the government and some AUs 
were supergrades.'"' But this ceiling was repealed in 1990.'*' The basis for 
this gatekeeper function seems less tenable now. 

If OPM approves the agency's request, OPM provides a certificate of 
names from the top of the register (from those who have marked the requisite 
geographical area). The certificate must contain at least three names per 
opening, but may contain a larger number to protect against nonacceptances by 
the top three names. When there are multiple openings at an agency, OPM 
adjusts the size of the certificate accordingly. The selection must be made 
from the top three eligibles unless they all decline the position (the so-called 
"rule of three").*' If, however, an eligible has appeared on three certificates, 
within reach of the appointing agency (i.e., within the top three per vacancy) 
and has been passed over three times in favor of another eligible within the top 
three, then the appointing agency may request that such person not appear on 
future certificates.'^ 



^Id. at 62340. 

'^S CFR §930.203a(a). 

'^^tfe 5 use §5 108 (1988). 

'^^b. L. No. 101-509, 101 Slat. 1743, amending 5 USC §5108. 

^'Required by 5 USC §3318 (1988). 

^See 5 USC §3317(b) (1988); 5 CFR §332.405 (1991). 



942 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The veterans preference in the civil service rules for hiring in the 
competitive service also applies to these certificates. In addition to the impact 
of the extra 5 or 10 points on scores, in selecting from the top three, the 
agency may not pass over a "preference eligible" to select someone else with 
an equal or lower score, unless special circumstances are presented by the 
agency and accepted by OPM.*^ 

Because AUs are appointed as career officials without a probationary 
period, and are subject to removal only for cause, agencies naturally worry 
about being constrained in the appointment process by the rule of three and the 
application of the veterans preference. Various methods for circumventing 
these restrictions have developed over the years. 

Selective certification of eligibles is still permitted by OPM on an agency- 
by-agency basis. Formerly, as described, almost one-half of the hiring 
agencies had enumerated special experience criteria that allowed such 
applicants to be asterisked on the register. Certificates were then given to the 
agencies of asterisked eligibles. At that point, the rule of three and veterans 
preference pass-over rules were enforced. This enabled agencies to reach 
eligibles who were much farther down on the overall register than they could 
otherwise. Now, however, OPM will entertain agency requests for "selective 
factors and quality ranking factors," but only if based on "empirical data 
gathered through job analysis."'^ A special form (Standard Form 39A, see 
Appendix V D) listing the special or additional KSAs and their justification 
must be submitted by the hiring agency's appointing officer. Nor does OPM 
really publicize this opportunity. (Its otherwise exhaustive 1989 "Program 
Handbook" on AUs does not mention this possibility.)'*^ OPM reports that 
no requests have been filed for this authority since 1984. 

The most prevalent way of circumventing the register, however, is through 
"lateral hiring "--transfer of ALJs between agencies. Transfers can occur either 
with or without a promotion to a higher grade, subject to OPM's approval.**^ 
OPM has recognized that this could provide some "gaming" of the system. 
For example, an agency may wish to hire an eligible who is too far down the 
register to be reached by that agency. The solution might be for the eligible to 
accept appointment as part of a large certificate at another agency in order to 
transfer to the desired agency. OPM reacted to this possibility by requiring 
that the transferring judge serve at least 1 year in his or her last appointment.*^ 



*35tf<r5USC§3318(b). 

^^See note 951 supra, and accompanying text. 

^^'Administrative Law Judge Program Handbook," U.S. OPM, Office of Administrative 
Law Judges (May 1989). 

^See 5 CFR §930.206 (1991). 
*^5 CFR §930.206(c) (1991). 



The Federal Administrative Judiciary 943 



Nevertheless, this was still the preferred route to a judgeship for many 
applicants, especially before the recent pay changes, when SSA hired off the 
GS-15 register and SSA judges "did their time" before achieving the desired 
transfer to a GS-16 agency. 

The importance of this method of appointing AUs is shown by the hiring 
statistics for the 10 years from 1981-90.** In that time OPM reported that 
there were 470 hires from the GS-15 register (presumably by SSA), but only 
25 hires from the GS-16 register. However, during the same period there were 
195 transfers including 83 with promotions. Presumably most of those 
promotions represented agencies hiring SSA judges and promoting them to GS- 
16 positions.*^ There were also 13 "reinstatements" of former AUs who had 
temporarily left the government without retiring and 67 "reemployments of 
retired annuitant AUs. "'^ 

Another variation of this is to play the geographic game. An eligible 
would accept a position in an unpopular area, hoping to achieve a transfer to a 
desired location, OPM permits this, but specifies that it must be "for bona 
fide management reasons and in accordance with regular civil service 
procedures and merit system principles. "^* It is difficult to measure how often 
this occurs, although OPM reported 424 "reassignments" in the last 10 years. 

How agencies actually decide whom they wish to hire is not well known, 
but generally it is agreed that agency heads tend to accept the recommendation 
of the agency chief judge. ^ Appointees are also subject to a background 
investigation by OPM and security clearance by appointing agencies. 

Applicants who obtain ineligible ratings or who are dissatisfied with their 
final ratings may appeal the rating to OPM's Administrative Law Judge Rating 
Appeals Panel within 30 days of the final action (or such later time as may be 
allowed by the Panel). The procedures and makeup of the Panel are not 
described in the OPM regulations, but the 1984 (and still operative) 
Examination Announcement provides that the Panel is chaired by the Assistant 
Director (OAU) and that the other two members are attorneys in private 
practice or AUs, selected by the Assistant Director, who did not participate in 



**Chart provided by OPM (see Appendix V B). A more up-io-dale chart showing all 
appointmenU from the OAU register from 1982-92 showed 477 SSA appointments and 39 other 
agency appointments. Letter from SSA Associate Commissioner Daniel Skoler to Nancy Miller, 
ACUS, December 9, 1992. 

'^A few might represent agencies hiring new chief judges from the ranks of other agencies. 

^See 5 use 3323(b)(2), added in 1984, permitting this practice. 

^^See 5 CFR §930.205 (1991). 

^^See Mans, Selecting the 'Hidden Judiciary: How the Merit Process Works in Choosing 
Administrative Law Judges (Part I), 60 Judicature 60, 73 (August 1979). 



944 Verkuil, Gifford, Koch, Pierce, and Lubbers 



the original rating and are not personally acquainted with the appellant.^ The 
Panel reviews the written record and may affirm the rating, rerate the appellant 
or remand the record for further development. 



C. Results of the Selection Process— ALJ Demographics 

A longstanding criticism of the AU selection program has been its 
underrepresentation of women and minorities among the applicant pool, and 
especially, among appointees.^ Another problem has been the relative lack of 
applications from private, as opposed to government, attorneys. '^^ 

1. Women and Minorities 

The earliest available breakdown on the sex of AUs (September 1962) 
shows that of 504 hearing examiners, six (1.2%) were women. '^ Perhaps this 
is not surprising since, as late as 1955, the CSC's Examination Announcement 
for Healing Examiners still stipulated that "The department or office 
requesting certification of eligibles has the legal right to specify the sex 
desired. "'^ 

Although this type of discriminatory clause is long gone, the statistics 
regarding women have not improved very much. In March 1990 there were 
1,090 AUs and only 59 (5.41%) were women. ^ Minorities are similarly 



^^Examination Announcement No. 318, supra note 948 at 16-17. 

^^See, e.g., Wald, Some Thoughts on Beginnings and Ends: Court of Appeals Review of 
Administrative Law Judges' Findings and Opinions, 67 Wash. U.L.Q. 661, 664 (1989) (Chief 
Judge of D.C. Circuit states she "was shocked to learn of the low percentage of women who have 
been appointed ALJs.") 

^^See e.g.. Park, Report of the Committee on Personnel in Support of Recommendation No. 
17, Recommendations and Reports of the Administrative Conference of the United States (vol. 1) 
(1968-1970) 381, 395 ("The Civil Service Commission has had enormous difficulty in attracting 
private attorneys. . . to take the exam.") 

''^"Viul Sutistics on Hearing Examiners as of September 1962" page 4. (In "Material For 
the Advisory Committee on Hearing Examiners") (1962). (On file with OPM and ACUS.) 

'^See Examining Circular EC- 17 "Hearing Examiner," U.S. Civil Service Commission 
(Amended October 11, 1955) at p. 3. 

'^^This figure actually represents a significant improvement from 1989 when OPM reported 
1,024 AUs and only 38 (3.71%) women. See Announcement of Revisions, supra note 957 at 
52340. 



The Federal Administrative Judiciary 945 



underrepresented. Of the 1,090, 32 (2.93%) were black and 30 (2.75%) were 
Hispanic.''^ 

In 1991 OPM compiled demographic statistics for all AU applicants and 
appointees since 1984 and all eligibles currently on the register. (See 
Appendix V A). The figures show that among applicants 17.43% were 
women; 90.12% were white, 4.11% were black and 4.5% were Hispanic. 
Among appointees y 11.08% were women; 91.77% were white, 4.11% were 
black and 3.60% were Hispanic. Among current eligibles on the register, 
21.13% are women; 90.04% are white, 4.38% are black and 3.98% are 
Hispanic. 

These statistics tend to show that women and minorities are all applying 
and being appointed in somewhat higher percentages than their current anemic 
percentages in the AU corps. However, the figures remain far below their 
respective proportions in society, and significantly below their proportions in 
the legal profession.'"*' Moreover, it seems clear that while blacks and 
Hispanics are being appointed in numbers approximately equal to their rate of 
applications and their numbers on the register, the same cannot be said for 
women. Women comprise more than 21 % of eligibles on the register and over 
17% of all applicants, but only 11 % of all appointees. 

As shown by OPM's statistics, a key reason for this is the effect of adding 
veterans preference points. Indeed, among all applicants women and men 



''^rom "Slalistics on Adminislralive Law Judges" provided lo Jeffrey Lubbers by 
OPM/OAU, March 25, 1991. 

'"^omen received 42.17% of all law school J.D. degrees from ABA-approved law schools 
in 1990. See "A Review of Legal Education in the United Stales Fall, 1990 Law Schools and Bar 
Admission Requirements," American Bar Association at page 65. Since ALJs must have been 
lawyers for at least 7 years, a better marker might be 1982-83. Figures are unavailable on J.D. 
degrees for that year, although women constituted 37.4% of eim)llees in U.S. law schools in that 
year. Id. at 66. A recent survey of attorneys in the nation's 251 largest firms showed that 
women constituted 26.2% of all lawyers. Blacks, however, made up only 2% and Hispanics 
1.2%. The National Law Journal, January 27, 1992 at page 31. Among attorneys in the U.S. 
government in 1989, OPM reports that 33.32% were women; 6.32% were black and 2.06% were 
Hispanic. Report of Federal Equal Opportunity Recruitment Program (FEORP), Generic Trends 
Report 1978 thru 1989, at p.43, U.S. Office of Personnel Management, Career Entry Group, 
Office of Affirmative Recruiting and Employment (November 1990). Another instructive 
comparison is with other high ranking government employees. OPM has reported that among the 
Senior Executive Service at the end of FY 1990, 12% were women and 7.7 were minorities (up 
from 5.7% women and 5.6% minorities in 1979). See Federal Times, December 30, 1991 at 
page 16. Another recent study by the Congressional Management Association of the top 
management suff positions in the U.S. Senate found that women held 31% of the jobs, blacks 
3.9% and Hispanics 0.5%. See Federal Times, December 23, 1991 at page 7. Finally, in 1991 
women made up 17.1% of U.S. mayors and 18.2% of state legislators, Washington Post, 
December 23, 1991 at page C3. 



946 Verkuil, Gifford, Koch, Pierce, and Lubbers 



achieve almost identical average combined scores on the four parts of the exam 
(84.43% and 84.42%, respectively) before veterans preference points are 
added. After the addition of the points, women applicants' average score rises 
only slightly to 84.58 (reflecting the low number of women veterans 
applicants)'*"' while the men applicants' average score rises nearly 3 points to 
87.28. Among actual appointees, the effect is even more dramatic: women 
appointees' combined average score rises from 87.04 to 87.36, while men 
appointees' average score rises nearly 5 points from 86.03 to 90.72.'"^ 
Overall, of course, it is much more difficult for nonveterans to achieve a score 
that will result in appointment. The average nonveteran appointee's combined 
score was 88.07 whereas the average appointee with 10-point veterans 
preference had an unsupplemented combined average score of 83.71 and the 
average 5-point veteran appointee had 85.71. These point differentials, when 
coupled with the rule of three and rule against passing over veterans within the 
certificate,'"" obviously can be determinative where the practical range for 
consideration is 85-100. (OPM has informed us that few if any AUs have 
been appointed with scores below 85. Tliis means that applicants with scores 
from 70-85, roughly the bottom half of the register, have virtually no chance 
of being appointed.) 

It should be pointed out that the percentage of applicants eligible for 
veterans preference is beginning to drop as applications from World War II 
and Korean War veterans dwindle, leaving, of course, Vietnam veterans. Of 
the 809 applications received in 1984, 330, or 41%, were veterans. But in 
1987, of the 741 applicants, 240, or 32% were veterans. This is also reflected 
in OPM's latest statistics. Although 67.47% of all appointees since 1984 were 
veterans (compared to 39.42% of all applicants), only 22.41% of eligibles on 
the current register are veterans.'"^ This demographic trend should continue 



'°°'StalisUcs provided by OPM to the Ninth Circuit's Gender Bias Task Force shows that of 
586 veteran applicant* from 1984-1991 only 5 were women. Of 1,083 nonveterans, 284 were 
women. The figures include some reapplicants. See letter from Lee Willis, OPM to Joan 
Schaffner, December 9, 1991 at 1. 

"^Another study of this issue showed that the 10 women in the top 100 eligibles on a 1988 
register for applicants in the Washington, DC area would have been, on the average, 31 positions 
higher if veterans preference points were not added to the 61 male veterans' scores, 
"Administrative Law Judges: Appointment of Women and Social Security Administration Staff 
Attorneys," General Accounting Office (GAO/GGD-89-5) at 4-5 (October 1988). 

^^^See notes 981-82, supra and accompanying text. 

'°^As of 1990, 30.3% of all federal employees were veterans. DVAAP Trend Data 1983 
Thru 1990, Tab C, Table 1, U.S. Office of Personnel Management Career Entry Group, Office 
of Affirmative Recruiting and Employment (November 1990). Among nondefense agencies, the 
number dropped to 22.8%, Id. For SES members, as of March 31, 1990 the figure was 36.8%. 
Id. at Tab D, Table 5. This report also shows that there are very few women veterans in the 



The Federal Administrative Judiciary 947 



unless veterans preference is granted in higher numbers than current pohcy 
allows to veterans of the recent Persian Gulf war (or the Grenada or Panama 
actions). '^^ 

The effect of veterans preference on minority hiring is less dramatic but 
still significant, according to OPM's statistics. Among all applicants since 
1984, whites show an average gain of 2.75 points when veteran preference 
points are added to their average combined score on the exam. Blacks gain 
1.63 points and Hispanics gain 2.27. Among actual appointees since 1984, 
whites gained 4.42 points, blacks 3.13 points and Hispanics gained the most— 
4.65 points.*'"* Among those still on the register, whites gained 1.43 points, 
blacks 0.46 points and Hispanics 1.00 points. Thus, in each category, whites 
gain approximately one full point more than blacks and also do significantly 
better than Hispanics among applicants who have not been appointed. 

While the possibility of "gender bias" in the social security program (or 
any other administrative program) is not the focus of this study, '°°^ the lack of 

federal workforce. Among women employees government wide of all races on March 31, 1990, 
3.58% were veterans; among men employees, 51.38% were veterans. Id., at Tab D, Table 6. 

'^^ost veterans with an honorable discharge who served until the advent of the volunteer 
army in 1976 are eligible for veterans preference. After 1976, service in a "can^aign or 
expedition for which a campaign badge has been authorized" is required. Military retirees above 
the rank of major are not covered unless disabled. 5 USC §2108 (1988). Such campaigns 
include Grenada, Libya, Panama and the Persian Gulf (since July 24, 1987). See Federal 
Personnel Manual Supplement 296-33, subchapter 7, "Adjudication of Veteran Preference 
Claims," Figure 7-7b. Legislation has been introduced to cover everyone on active duty during 
the Persian Gulf War whether or not they were in the war theater. (H.R. 3764, introduced by 
Rep. Penny). It is estimated that there were about 500,000 American military personnel serving 
in the Persian Gulf war and 2 million on active duty throughout the world at the time. 

'^^trangely, however, once "unknown" is removed from the calculation, Hispanics are 
appointed at a percentage (3.60%) lower than their percentage of applications (4.50%). Note 
also that the average adjusted combined score for Hispanic appointees (91.43) is by far the 
highest among all groups. 

'°°^But see Preliminary Report of the Ninth Circuit Gender Bias Task Force (Discusion 
Draft, July 1992), Chapter VI "Federal Courts and Administrative Adjudication: Federal Benefits 
and Immigration Law." See also "Gender in Social Security Disability Determinations," Ninth 
Circuit Gender Bias Task Force Advisory Committee on Federal Benefits, submitted to ACUS as 
comments on draft report (June 1992). As Justice O'Connor has commented, "Do women judges 
decide cases differently by being women? I would echo the answer of my colleague. Justice 
Jeanne Coyne of the Supreme Court of Oklahoma, who responded that 'a wise old man and a 
wise old woman reach the same conclusion.' This should be our aspiration: that whatever our 
gender or background, we all may become wise-wise through our different struggles and 
different victories, wise through work and play, profession and family." James Madison Lecture, 
New York University Law School, October 29, 1991 at p. 12 (footnote omitted, emphasis in 
original). See also, Schafran, Gender Bias in the Courts: An Emerging Focus for Judicial 
Reform, 21 Are. St. L. J. 237 (1989). 



948 Verkuil, Gifford, Koch, Pierce, and Lubbers 



women and minority AUs is a special concern with respect to social security 
cases given the relatively high percentage of women and minority claimants 
who participate in such hearings.'"* A 1989 General Accounting Office study 
documented the low number of women ALJ appointees at SSA (the largest 
employer of AUs by far) and concluded that "male veterans have dominated 
the AU appointments."'"*^ SSA can, however, be more flexible in its hiring 
because it can, and does, wait until it has numerous vacancies and then seeks a 
very large certificate, thus enabling it to reach way down into the register. 
Through this method, SSA has been able to hire a much higher percentage of 
women AUs in recent years than other agencies (close to 21 % in its last major 
hiring of a block of 115 AUs).'^'^ 

OPM has recognized the problem with respect to the low number of women 
and minorities among AU applicants and appointees, '°" but it has been 
reluctant to seek modification in the application of veterans preference to 
AUs. Instead, it has preferred to accentuate recruitment of women and 
minority applicants. Whether this will bear fruit once the examination is 
reopened is, of course, impossible to tell at this time. 



'"*Women represent about half of all social security beneficiaries. They represent only 36% 
of those receiving disability benefits but 68.6% of those receiving SSI benefits (which are 
financial-need based). See "Social Security Bulletin, Annual Sutistical Supplement, 1991" at 
234, 288, SSA/DHHS and "1991 GreenBook-Overview of EntiUement Programs," House 
Comm. on Ways and Means, 102nd Cong. 1st Sess., May 7, 1991 at 64. Demographic data on 
claimants, or on claimants challenging denials before AUs, is not readily available although there 
are indications that a greater proportion of women than men are denied benefits, especially when 
claiming chronic pain syndrome. Conversation with Peter V. Lee, Researcher, Ninth Circuit 
Gender Bias Task Force, February 1991. There is also evidence that physicians are significantly 
less willing to prescribe certain treatments and procedures for women than for men. New York 
Times Editorial, "Take Women's Health to Heart," July 26, 1991. 

'"^5<r<r GAO study cited at note 1002, supra, at page 2. The report also noted the difficulty 
encountered by SSA staff attorneys (most of whom can reach only GS-13 positions at SSA) when 
they apply for ALJ positions. OPM counts 2 years of GS-13 experience as qualifying but has not 
rated it highly enough in the SQS portion of the exam to, in practice, allow a high enough final 
rating for selection (absent veterans preference). Thus, although approximately 230 such staff 
attorneys ("decision writers") have been placed on the register in the last 2 years, only 21 have 
been hired by SSA, and all of them had some other experience. Conversation with Lee Willis, 
Acting Director, OPM Office of Adminstrative Law Judges, December, 1990. 

'°'%terview with Lee Willis and Bob Bell of OPM/OAU, July 23, 1991. Summary 
prepared by Paul Verkuil, July 24, 1991 (page 1). 

'°"ln its recent Federal Register notice, OPM posed the question "What Can be Done to 
Improve the Representation of Women and Minority Group Members as Judges?" See 
Announcement of Revision, supra note 957 at 52340. 



The Federal Administrative Judiciary 949 



What does seem likely, however, is that many among the current corps of 
ALJs, whose average age was 58 in 1988, '^'^ win be retiring soon-mostly 
likely in 1993-94 after they have obtained their "high three" years of salary 
under the new pay structure so as to optimize their pensions. This will 
produce new opportunities for hiring. It is thus important for OPM to have 
any modifications of its selection process in place by that time. 

2. Recruitment of Attorneys From Private Practice 

It is quite natural that federal government attorneys would be more likely 
than their private counterparts to seek AU positions. They are in a better 
position to know about the job, it can represent a higher rung on the career 
ladder, and federal attorneys often find it difficult to move into private 
practice. AU appointment means a continuation of federal service for the 
purposes of retirement, leave and other benefits. Moreover, it is equally 
natural for hiring agencies to tend to prefer to hire government attorneys, 
especially applicants from their own legal staffs. 

Nevertheless, concerns have persisted over the years that the government's 
AU program was harmed by its inability to attract higher numbers of private 
attorneys. These concerns range from a generalized worry that the talent pool 
is thereby weakened to the more specific fear that "inbreeding" among 
agencies' own attorneys can result in biased (however subtly) pro-agency 
judges. 

This concern reached a peak when selective certification was in its heyday 
in the 1960s and 1970s, as various studies showed that selectively certified 
appointees were usually government attorneys, often from the agency doing 
the appointing. 

In 1967 only 20 percent of the attorneys on the register were private 
attorneys, '013 a figure that fluctuated between 10.5% and 34% through 1980. 
This problem seems to have subsided, however. In 1988, OPM reported that 
25.4% of the 741 applicants from the 1987 examination were from private 
practice (45.7% were federal attorneys and 17.8% were from state or local 
government). •°"* Among the 153 applicants hired from 1984-88 (mostly by 



'°'^5tftf ALT Program Handbook, supra note 985 at 4. The 1992 AU survey shows that 58% 
of respondents are 55 and over. Question #5 (appendix IV A). 

^^^^See Miller, The Vice of Selective Certification in the Appointment of Hearing Examiners, 
20 Admin. L. Rev. 477, 478-79 n.l. (1968). 

'^•''"Update From the Office of Personnel Managment," Remarks by Craig B. Pettibone, 
OPM/OAU to Federal Administrative Law Judges Conference Twenty Fifth Annual Seminar, 
September 25-27, 1988, Ocean City, MD at page 4. 



950 Verkuil, Gifford, Koch, Pierce, and Lubbers 



SSA), 35% were from private practice (39% were federal attorneys and 25% 
were from state or local government). '°'^ 

The disuse of selective certification may have contributed to the small but 
noticeable reduction in the appointment of federal attorneys to AU positions— 
although it should be noted that very little hiring from the register has taken 
place in the past decade among the regulatory agencies that once relied on 
selective certification. 

Moreover, the pros and cons of hiring attorneys with specialized 
experience are not one-sided. SSA, for example, has been strongly pushing 
OPM to grant more credit to the experience of its own staff attorneys who 
serve as decision writers for its ALJs.*°'^ 

What does seem clear is that the number of private attorney applicants is 
partly a function of recruitment, which, in turn, is heavily influenced by salary 
considerations. The recent significant pay increase for AUs, when coupled 
with the downturn of the economy, has the potential to dramatically increase 
the attractiveness of AU positions to private attorneys. 



D. The Selection Process for Non-ALJ Adjudicators 

The Administrative Conference's 1989 survey, reported by John Frye, has 
documented the growth of non-AU adjudication in the federal government. '°''' 
Frye counted 2,863 such presiding officers, 601 of whom had no other duties. 
These adjudicators are, of course, not covered by the Administrative Procedure 
Act's provisions that led to the OPM selection process for AUs. The 
Conference's survey attempted to shed some light on how they are selected, by 
asking each agency how these non-AUs were "selected for their 
position/role. " In most instances, the selection process is much less structured 
than the AU program. 

One exception to this general rule involves the approximately 80 
"administrative judges" who serve on the dozen agency boards of contract 
appeals. The Contract Disputes Act of 1978, which created these Boards, 
specifies that board members shall be "selected and appointed to serve in the 
same manner" as AUs appointed pursuant to 5 U.S.C. §3105.'°'* 

This statutory language has been interpreted by the departments and 
agencies that have such boards as permitting them (and not OPM) to develop 



'0'5/^.al3. 

'°' discussed in more detail, infra. 

'°'^Frye, Survey of Non-AU Hearing Programs in the Federal Government, Administrative 
Conference of the U.S. (August 1991). 
'0'*41 use §607(b) (1988). 



The Federal Administrative Judiciary 95 1 



procedures similar to (but not identical to) those employed in the selection of 
AUs. OPM has apparently determined that it has no jurisdiction in the 
selection process. The General Accounting Office in 1985 agreed with this 
interpretation, and although it found no fault in the selection aspect of the 
program, urged Congress to give OPM the same general oversight of BCA 
judges as it has for ALJs.^°'^ The largest BCA is the Armed Services Board of 
Contract Appeals in the Department of Defense. The ASBCA, with the help 
of OPM advisers, has developed an examination process that somewhat 
parallels the ALJ exam, but with some significant differences. '<^ The ASBCA 
does not focus on trial or administrative law experience, but follows the 
Contract Disputes Act by requiring 5 years of experience in public contract 
law. 

The rest of the ASBCA process is more streamlined than the AU exam, '^^i 
The applicant does not need to complete a written decision. Instead, he or she 
must submit two written work products and write essays on his or her most 
significant legal accomplishment and "achievements in influencing others. " A 
dozen references are requested. The ASBCA Chairman assigns a team of three 
BCA judges who then telephone individuals listed as references, interview the 
applicant, and numerically rate the applicant on each of 13 "dimensions" 
(similar to the KSAs used by OPM) to arrive at a combined rating. '°^ 
Veterans preference is shown by giving veterans the benefit of the doubt on 
any close calls on a dimension—thus making it easier for veterans to obtain a 
higher combined rating. That rating is then translated into an eligibility rating 
(using the terms "highly qualified," "qualified" and "non-qualified"). The 
Chairman then enters the highly qualified and qualified applicants on the 
register (alphabetically, without numerical ratings, but with veterans status 
noted) for selection purposes. '°^ The examination process is always open, and 
currently there are several dozen eligibles on the register. 



^^^^See "The Anned Services Board of Contract Appeals Has Operated Independently," U.S. 
General Accounting Office Report to The Chaimnan, Committee on GovemmenUl Affairs, U.S. 
Senate (GAO/NSIAD-85-102) (September 23, 1985). 

l02Oi^g following description is based on a telephone interview with Paul Williams, 
Chairman, ASBCA, December 1991. 

'°^'For a detailed description of this process, see "Member, Board of Contract Appeals- 
Procedures for Qualifications in the Department of Defense," (ASBCA December 1991) on file at 
the Administrative Conference. 

'°^5ee "Final Panel Rating" sheet used by ASBCA listing the 13 dimensions (ASBCA, 
December 1991) on file at the Administrative Conference. 

^^"^See note 1050, infra for an explanation of how veterans preference is applicable to the 
hiring of "Schedule A" attorneys in the government. 



952 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Although the primary users of this register are the ASBCA and the Army 
Corps of Engineers BCA, the Chairman permits other agencies to use the hst. 
The Chairman reports that the ASBCA has never selected anyone with a rating 
below "highly qualified, "'^^ although he is in no position to stop other 
agencies from doing so. 

A similar, competing, register has been developed by the General Services 
Administration BCA, which is frequently used by the other "civilian" boards. 
Some agencies reserve the right to use different methods of selection as 
well. '023 

Another important group of non-AU adjudicators, the approximately 80 
immigration judges'^^ at the Department of Justice, are also hired in a 
structured, but much more informal, method. As explained by the Chief 
Immigration Judge, '°^ U applicants must be bar members with 6.5 years of 
legal experience. "Selective placement factors" include: availability for 
frequent travel, valid driver's license and willingness to travel by air, 
knowledge of immigration laws, ability to conduct high volume legal hearings, 
and knowledge of judicial practices and procedures. Applicants must submit 
the normal federal civil service application form (SF-171) and/or a current 
resume along with a statement of preferences from among the 21 field office 
locations. A computerized "Immigration Judge Applicant File" creates a pool 
of applicants. When a vacancy arises, a report is created that lists applicants 
for that location. Applicants are interviewed and a choice is made based on the 
paperwork, interview and reference checks. In effect, except for the 
experience requirement and the guidelines offered by the selective placement 
factors, this boils down to the usual process for hiring Schedule A lawyers, 



'°^Indeed a recent Certificate of Eligibles to the ASBCA for the filling of a vacancy listed 27 
names, all of whom were rated highly qualified and 17 of whom had veterans preference 
(including the selectee). (Certificate of July 24, 1990). 

'O^A supplementary response to the Conference questionnaire from HUD's General Counsel 
states that "I wish to clarify that the Secretary currently has no set policy with respect to Board 
appointment and reserves the option to employ different methods of selection in filling future 
vacancies while still meeting the statutory and regulatory requirements for qualification. ..." 
Letter from Frank Keating to Jeffrey S. Lubbers, Research Director, ACUS, September 27, 
1989. 

I026yj,ggg judges are technically known as "special inquiry officers" (8 USC §1101 (b)(4)). 
Legislation was introduced to officially change their name to "immigration judges," and to 
increase their pay to correspond, in sUges to 65-90% of the ES-5 rale of pay (just below the pay 
of AUs), but was not enacted. See S. 2099, 102d Cong. Isl Sess., reprinted in 137 Cong. Rec. 
S. 18417 (daily ed. November 26, 1991). 

'^Letter from William R. Robie to Jeffrey S. Lubbers, October 12, 1989, pages 4-5 of 
attachment. 



The Federal Administrativt Judiciary 953 



who are excepted from the competitive civil service hiring rules employed 
elsewhere in the federal government. '^^ 

The Merit Systems Protection Board, which employs approximately 70 
"Administrative Judges" who hear and decide most federal employee appeals, 
simply reported that "Positions are filled in accordance with Schedule A 
appointment authority. The methods used for selecting applicants may include 
recruitment from a Vacancy Announcement, college recruitment, reassignment 
of in-house attorneys and inquiries from unsolicited outside applicants. "'°^ It 
should be noted that legislation has been introduced (apparently at the request 
of the MSPB AJs) to give them most of the attributes of and protections for 
AUs, but without altering their appointment process. '^^ 

The largest employer of non-AU adjudicators is the Department of 
Veterans Affairs, which employs 1,650 claims examiners who serve on rating 
boards that determine disability issues, and 42 hearing officers who hear initial 
appeals from rating boards. The claims examiners, who are part-time 
adjudicators, are merely assigned by supervisors to serve on rating boards. 
The hearing officers, although they need not be lawyers, are perhaps closer to 
the AU model in that they preside singly and are not assigned duties in 
"conflict with their status as an impartial and independent decision maker." 
They are "selected by the Chief Benefits Director from among competitive 
candidates who meet the qualification requirements established by the GS-930 
series. "'03' 

Nearly all the other agencies and departments reporting non-AU 
adjudicator employees'^^^ report that their hiring is no different from the usual 
process for hiring attorneys. 



^^^See note 1050, infra and accompanying text. 

'O^^tler from Mark Kelleher, Director, Office of Regional Operations, MSPB to Jeffrey S. 
Lubbers, July 24, 1989, page 2 of attachment. But see note 343, supra, indicating that the Board 
misukenly listed college recruitment. 

'°^.R. 3879, 102d Cong. 1st Sess. (November 22, 1991) (by Rep. Gekas). 

'"^'Letter from Frederick L. Conway, Special Assistant to the General Counsel, Veterans 
Administration to Jeffrey S. Lubbers, August 14, 1989, page 2 of attachment. 

'°^^At least one program, that of the Department of Defense Civilian Health and Medical 
Program, which has 11 "OCHAMPUS Hearing Officers," uses nonemployees. The Department 
reports that these officers are "solicited through a firm fixed-price negotiated procurement using 
source selection process." Letter to Jeffrey S. Lubbers (ACUS) from Gerald A. Wesley, Acting 
General Counsel, Office of Civilian Health and Medical Program of the Uniformed Services 
(DOD), June 27, 1989. 



954 Verkuil, Gifford, Koch, Pierce, and Lubbers 



E. Proposed Modification of the ALJ Selection Process 

It seems clear that there is much to commend the selection process that the 
Civil Service Commission and its successor, the Office of Personnel 
Management, have developed and administered for the selection of 
administrative law judges. It is one of the few attempts to incorporate true 
"merit selection" processes for judges in our legal system. It has been 
scientifically "validated" to the point where it seems impervious to legal 
challenges by disappointed applicants. And it has produced judges who have 
operated within the administrative law framework, for the most part quietly, 
competently, efficiently and without scandal. These are not achievements to 
be lightly dismissed. 

Nevertheless, it seems equally clear that the system requires modification. 
The problem, in a nutshell, is that the hiring agencies do not feel that the 
current rating system and selection process permits them to hire the best 
qualified applicants. OPM's largest "customer," the Social Security 
Administration, is extremely dissatisfied with the process by which applicants 
are rated and presented to it for selection. '°^^ Moreover, almost all of the other 
hiring agencies have either largely abandoned the practice of hiring applicants 
from the register of eligibles in favor of lateral transfers, or they have avoided 
the use of AUs altogether. OPM's administrative costs in managing the 
system are so significant that the agency has kept the examination period 
closed for long periods. The time and effort required of applicants in seeking 
the position is inhibiting. Finally, the rating process impedes the recruitment 
of women and minorities. '°^ 

All of these deficiencies can and should be addressed soon— before the 
examination is reopened to accommodate the pent-up backlog of applicants 
who are likely to be interested in AU positions due to the pay increases that 
resulted from the 1990 pay reform legislation and who will soon be needed to 
fill vacancies created by the wave of AU retirements expected in 1993-94. 

In brief, the following reforms are needed: (1) The examination process 
needs to be streamlined; the basic aspects of the current examination should 
continue to be administered by OPM, but a significant portion of it should be 
left to the hiring agency (albeit with appropriate safeguards). The resulting 



^^^^See notes 1067-72, infra, and accompanying lexi. 

'°^^*rhese criiicisms are not new. In 1978, the Senate Govemmenul Affairs Conunittee 
reported that "Ail those interviewed who were familiar with the AU selection process criticized 
it." Study on Federal Regulation, Vol. IV, "Delay in the Regulatory Process," 95th Cong., 1st 
Sess., Committee Print (July 1977) at 107. The Committee also stated, "What is striking about 
this process is \Xs total inconsistency with the procedures that any rational organization would use 
lo hire lawyers in midcareer for sensitive and responsible positions. Id. 



The Federal Administrative Judiciary 955 



examination process would thus be less burdensome on OPM and on the 
applicants. (2) Veterans preference in the selection of AUs should be 
eliminated or the preference made less determinative. (3) OPM should make it 
easier for agencies to request that specialized experience be factored into the 
rating and selection process. (4) A separate register should be created for the 
hiring of AUs by the Social Security Administration. 

1. Streamlining of the Examination 

OPM's Office of AUs estimates that each application takes the agency 
about 8 3/4 hours to process. '°^^ This does not count the time spent in drafting 
benchmarks and rating guides, arranging for the syllabus for the written 
decision, setting up panel interviews, or training the volunteer participants. 
No cost data are available, although it should be noted that in 1990 the Office 
of AUs' budget was $306,530 and the office had 6 employees. '^^ 

With this low level of staffmg, the Office has not been able to operate a 
continuously open register since 1983. The examination was reopened in the 
summers of 1984 (809 applicants) and 1987 (741 applicants), but has been 
closed since. With a large influx of applicants expected upon the next 
reopening, the OAU will clearly have to develop more efficient ways to 
examine these applicants to meet OPM's goal of reinstituting a more frequently 
opened examination. 

A more streamlined examination vehicle developed through state-of-the-art 
questionnaire design may be one way to help meet OPM's administrative needs 
while also making it easier on applicants to apply. This idea should be 
pursued especially because fully 80% of the AUs surveyed indicated that 
completing the written application was very (43%) or somewhat (37%) 
burdensome. '°^^ But the level of agencies' criticism of the exam and their 
machinations to circumvent it show that the problem is more fundamental than 
mere administrative efficiency. The solution is to shift some of the 
responsibility for evaluating eligible applicants from OPM to the agencies. To 
some extent this can be accomplished administratively, but legislation may be 
needed to fully implement this reform. 



'°^^Handwritlen response by Lee Willis, OAU to December 5, 1991 letter from Jeffrey 
Lubbers (ACUS). On file at ACUS. The 8 3/4 hours breaks down as follows: SQS (30 
minutes), PRI (15 minutes), WD (6 1/2 hours) and PI (1 1/2 hours). Obviously, it might take the 
applicant quite a bit longer to complete this process. 

'"^formation supplied by OPM/OAU. In 1982 the office had 7.9 "full-time equivalent" 
positions and a larger budget (in real dollars) of $269,250. The Office has historically had an 
SES or supergrade head, one GS-13, 1-2 GS-12s, a GS-7 secretary, and two clerks. The 
"deputy" position was abolished in 1985 or 1986. Id. 

^^'^'^See results on question # 18(a) in the 1992 AU survey (Appendix IV A). 



956 Verkuil, Gifford, Koch, Perce, and Lubbers 



2. OPM'sRole 

OPM should continue to determine the minimum qualification requirements 
for the AU position. The current threshold requirements, as eased in 1984, 
have received little if any criticism. '°^ Indeed 95% of AUs surveyed felt that 
the selection criteria are relevant to duties actually performed. '°^^ 

OPM should also continue to rate the experience of applicants through a 
modified Supplemental Qualifications Statement (SQS). As explained, OPM 
has been rating applicants on five "knowledges, skills and abilities" (KSAs) 
and has begun to develop guidelines for a sixth KSA. One AU has strongly 
criticized the overweighting of several of the KSAs. Judge Jesse Etelson has 
complained that KSA #3 (decision-making ability) as implemented by OPM's 
rating guidelines underrates the experience of agency staff reviewer-writers in 
favor of agency advocate-litigators.'^^ He also criticized KSA #1 as 
overemphasizing the value of "knowledge of rules of evidence" (since rules of 
evidence are liberalized in many AU proceedings)'^' and KSA #4 ("oral 
conmiunications ability and judicial temperament") as relating little to AU- 
specific skills. '^^ 

Although one can agree with aspects of Judge Etelson 's more fundamental 
critique, his complaint that the individual KSAs are inappropriate or 
improperly weighted is not very persuasive. Indeed, OPM has performed 
quite admirably in distilling the key factors that both minimally qualify 
someone to become an AU and in developing guidelines for evaluating the 
experience of such applicants. Where Judge Etelson 's critique is most 
trenchant is his description of OPM's "microcalibration" of the rating 
scores. '^^ 

OPM calculates the SQS portion of its rating by having its examiners 
review the applicant's one- or two-page response on each of the KSAs, using 
benchmarks and rating guides developed for the purpose. A score of 1 to 5 is 
assigned each KSA and the score is then totaled into a raw rating on the SQS 
portion of the exam. Until recently, the SQS portion of the exam counted for 
63% of the total final rating (not counting veterans preference points), so the 



'^■^Although OPM may wish to consider whether applicants with legal experience as 
arbitrator, mediator, professor of law, or judicial law clerk might possess qualifying experience. 
Examination Announcement No. 318 now provides that such experience may be qualifying "in 
rare and unusual instances" (page 6). 

'°3^Question #19. (Appendix FV A). 52% said "very" relevant; 43% said "somewhat" 
relevant. 

'^**felson, supra note 958 at 189-90. 

'^'/^. at 190-91. 

'0*3/^. at 193. 



The Federal Administrative Judiciary 957 



SQS score was quite important. Indeed, it was so important that OPM has 
often used this raw score to determine which applicants would even be allowed 
to complete the rest of the exam. 

The proposed reform of the system recognizes the importance of the 
experience rating, but it would end OPM's involvement at this stage. Ideally 
OPM would avoid "microcalibration" of its register of eligibles by simply 
listing all of the applicants who achieved higher than the threshold score on the 
SQS. The lists of eligibles would then appear alphabetically as "eligible for 
appointment." If desirable or necessary other attributes such as specialized 
qualifications or veterans preference (see below) might be noted next to each 
name. Perhaps the Armed Services Board of Contract Appeals selection 
process could be emulated by dividing the eligibles into "qualified" and 
"highly qualified" registers. But the main goal would be to get away from the 
highly microcalibrated ranking system now in use. 

Before discussing the other aspects of the current examination (the personal 
reference inquiry, written decision, and panel interview), it is appropriate to 
analyze here whether current law permits OPM to simply rate applicants as 
eligible without assigning them numerical ratings. 

As mentioned at the beginning of this chapter, then-Professor Scalia has 
noted that the original text of the Administrative Procedure Act "evidently 
contemplated" that the Civil Service Commission would simply establish 
minimum qualifications for hearing examiners by rule and that the agencies 
would select from applicants meeting those requirements.'''' 

The current text of the APA, governing OPM and ALJs, is even less 
demanding on this point since the codification dropped the phrase "qualified 
and competent" originally used to describe the AUs agencies may appoint."^ 
OPM, however, points to various provisions in the Civil Service Reform Act 
of 1978, codified in Title 5 of the U.S. Code, as requiring a numerical rating 
system. 

OPM considers AUs to be in the "competitive service." The classification 
is important because section 3313 requires applicants for professional positions 
"who have qualified in examinations for the competitive service" to be entered 
on registers or lists of eligibles "in the order of their ratings, including 
[veterans preference] points added.... ""^ No provision of Title 5 specifically 



^^*See note 932, supra and accompanying text. 

''^5 use §3105 (1988) ("Each agency shall appoint as many administrative law judges as are 
necessary for proceedings required to be conducted in accordance with sections 556 and 557 of 
this title.") 

'*^3f course, even under this provision, OPM is not required to conduct all portions of the 
current examination. It could simply transmute the SQS score onto a 100-poinl scale and then 
add the veterans preference points. Moreover, it is also unclear whether a scale of 100 points is 



958 Verkuil, Gifford, Koch, Pierce, and Lubbers 



places ALJs in the competitive service, although section 1104 addresses this 
issue obliquely. It permits the OPM Director to delegate the authority for 
competitive examinations to agency heads "(except competitive examinations 
for administrative law judges....") Whether this section requires competitive 
exams for AUs is, of course, not clear, although OPM cannot be faulted for 
so interpreting it.*^' But given the obvious difficulties caused by this 
interpretation, perhaps it is time for OPM to take the position that AUs (like 
other attorneys in the federal government) are in the "excepted" service (i.e., 
excepted from the competitive service).'^*** 

It is true that section 3320 requires that the hiring of lawyers and others in 
the excepted service be done "in the same manner and under the same 
conditions required for the competitive service...." However, since 1943, the 
Civil Service Commission (and now OPM) has been prohibited by statute from 
requiring that attorney positions be filled pursuant to examination.'^^ Thus, if 
AUs were to be considered excepted service attorney positions (as are many 
non-AU adjudicators), no numerical rating system would be required. *°^ 



required by law. Obviously, the effect of adding the 5 or 10 points required by section 3309 
would be diluted if a 1,000-point scale were used. Nor would such points be so crucial if the 
applicants' unadjusted scores did not bunch so closely in the 85-95 point range. 

I047jjjg legislative history to section 1104 sheds no light on this issue. The new pay 
legislation, Pub. L. No. 101-509, also removes AUs from the GS pay schedule normally used in 
the competitive service. 

1048qp^ "may except positions from the competitive service when it determines that 
appointments thereto through competitive examination are not practicable." 5 CFR §6.1 (1991). 
Agency circumvention of the register might very well provide a basis for such a determination. 
See also the position of the National Association of Women Judges that "various statutory 
provisions specifically except ALJs" from the competitive service. Comments of the NAWJ on 
ACUS Draft Report, June 29, 1992. 

^^'^See Pub. L. No. 101-509, 104 Stat. 1420, for the latest version of the prohibition, in the 
1991 OPM appropriations legislation. 

^^^See Memorandum Opinion for the Associate Attorney General, Veterans Preference Act 
(5 use §§2108, 3309-3320)-Application to Attorney Positions, Office of Legal Counsel Opinion 
#78-45 (August 14, 1978) (1978 Bound Volume at 179-184), concluding that the Civil Service 
Commission was precluded from requiring the Department of Justice to use a numerical rating 
system for attorney applicants. The opinion also concluded that the Department was bound to 
apply veterans preference in attorney hiring "in some fashion." Id. at 182. It further concluded 
that it was sufficient for the Department to positively consider veterans preference by providing 
that if hiring factors arc "equal, or even close, the preference eligible will normally be selected 
over the nonpreference eligible." Id. at 183. 



The Federal Administrative Judiciary 959 



3. Shifting the Other Parts of the Exam to the Hiring 
Agencies 

With respect to the remaining parts of the examination, now administered 
by OPM (the personal reference inquiry, the written decision and the panel 
interview), it is recommended that OPM permit the hiring agencies to 
undertake these tasks as they see fit. Each aspect, following up on references, 
assessing written work, and the interview, are already customarily undertaken 
by agencies when they hire other employees, whether they be clerk typists off 
the competitive registers, attorneys in the excepted service, or members of the 
Senior Executive Service. Indeed, agencies hiring AUs under the current 
system still feel obliged to conduct this sort of follow up with applicants who 
are on OPM certificates or with judges who are applying for transfers. '°^' 

Moreover, these aspects of the examination seem to be more trouble than 
they are worth to OPM. The personal reference inquiry has always been 
controversial— in the old days the "voucher system" produced skewed results 
and the current "forced choice" questionnaire has produced confusion. Over 
half of the AUs responding to the survey said this part of the examination was 
"very" (12%) or "somewhat" (40%) burdensome. OPM has recently proposed 
reducing the PRI's weight to only 10% of the final rating. '°" 

The written demonstration and panel interview both also have their 
problems. The WD takes 5 hours and is not easy to take, administer or grade. 
Almost half of the AUs replied that it was "very" (10%) or "somewhat" 
(39%) burdensome. Judge Etelson has a point when he complains that a 5- 
hour exam geared primarily to issue spotting does not really resemble the 
actual writing of an opinion. '°^^ Moreover, there is no reason to suspect that 
hiring agencies could not sufficiently test or check applicant's writing skills. 
In this connection, it should be noted that the ASBCA has omitted this aspect 
in its exam for BCA judges. 

The panel interview, although not particularly burdensome for applicants 
(70% of AUs responded that it was not burdensome), is an administrative 
headache for OPM, which must arrange for the participation of a staffer, an 
AU and a private attorney for the interview. Although interviews obviously 
can be an important ingredient in the selection process, there is no reason the 
hiring agencies cannot and should not undertake this task, as they do in most 
hiring decisions. 



'°^' According to the 1992 AU survey, 72% of respondents said that agency interviews were 
not burdensome, and only 6% said the question was not applicable. See question #18 (in 
Appendix IV A). 

^^^^See note 957, supra and accompanying text. 

'O^^Etelson, supra note 958 at 191-92. 



960 Verkuil, Gifford, Koch, Pierce, and Lubbers 



In summary, the proposed modification of the examination process for AU 
applicants would assign OPM the responsibility to set minimal qualifications 
and to rate the experience of applicants to determine their eligibility for 
selection, but without numerically ranking them. Under this proposal, 
agencies would be permitted to select from the entire list of eligibles, and 
agencies would be authorized to follow up on references, request writing 
samples, and interview applicants. 

If, as proposed, hiring agencies were permitted to hire anyone certified as 
eligible by OPM off the register, the biggest concern is that a form of 
"cronyism" might develop in the hiring process. To some extent, of course, 
this concern already exists since most agencies do most of their hiring in a 
relatively untrammeled way through transfers. But this potential problem can 
be solved in the same way it is addressed in the hiring of members of the 
Senior Executive Service—through the use of "executive review boards" that 
must approve their hiring. '°^ OPM could require agencies to establish such 
boards to be used to review AU hiring. For example, such a board could 
consist of an SES member (e.g., from the agency's personnel office), an AU 
appointed by the Chief AU, and the general counsel. This safeguard would 
help provide a second shield against cronyism and a better guarantee of quality 
appointments. 

4. The Role of Veterans Preference in ALJ Selection 

Under the proposed modification of the AU selection process, the 
numerical ranking system would be eliminated, and with it the mechanical 
addition of veterans preference points. Of course, as with the hiring of 
attorneys, application of veterans preference would be required, but in a much 
less mechanical fashion. 

If, however, OPM, for whatever reason, found it impossible to implement 
the proposed elimination of the ranking system, it would be necessary to 
confront more directly the issue of how the veterans preference operates in the 
context of AU selection. 

Extending preferential treatment in the civil service to veterans is obviously 
a laudable and reasonable social policy. Many veterans need assistance in 
readjusting to civilian life and those who have served our country deserve 
some rewards for doing so. This policy is especially justifiable when applied 
to those who have been drafted and have had to f>ostpone their normal career 
development. With the advent of the volunteer army, however, and its 
attendant incentives, the case for hiring preferences becomes somewhat less 
persuasive. But whatever its merits with respect to entry level positions in the 



*5^tf 5 use §3393 (1988). 



The Federal Administrative Judiciary 96 1 



government, veterans preference arguably should not apply to the hiring of 
such high level, sensitive positions as administrative law judges. 

In the first place, applicants for AU positions must already be successful 
lawyers—they are generally not recently discharged veterans who need 
readjustment assistance. '°^^ Moreover, if the applicants have previous 
government service (as most do), they would presumably have already 
received veterans preference in their initial appointments.'^^ Appointment to 
an AU position, for government lawyers, is really a promotion, and veterans 
preference is normally not applicable to promotions. 

Nor can it be seriously questioned that the current system of veterans 
preference undermines merit selection principles and also decreases the number 
of women who can be appointed to ALJ positions. Veterans have significantly 
lower unadjusted ratings on the examination than non veterans, yet are 
appointed in much higher percentages. Women applicants, on the other hand, 
have equivalent unadjusted scores to men, yet receive far fewer veterans 
preference points and are appointed in disproportionately lower numbers (both 
as compared to their percentage of applicants and as compared to men 
appointees). '°^^ 

Moreover, OPM's actual statistics show, somewhat counter intuitively, that 
veterans preference points also fail to help the average minority applicant as 
much as they do the average white applicant. In short, veterans preference as 
now practiced in the hiring of AUs produces less highly qualified appointees 
and also at the same time serves to depress the appointment of women and 
minorities to the AU corps. 

In 1978, when the Civil Service Reform Act created the Senior Executive 
Service—a group of high-level civil servants whose salary and responsibility 
approximate those of AUs— Congress exempted their hiring from the veterans 
preference laws.'°^ The same rationale should apply to the hiring of AUs, 



'O^^Indeed, one would think that the most likely type of veteran to benefit from this 
preference in AU selection would be a career military lawyer who has retired. However, retired 
careerists above the rank of major are not eligible for preference unless they are disabled. 5 USC 
§2108(4) (1988). 

'°^^oreover, OPM, in calculating qualifying experience, permits AU applicants entitled to 
veterans preference to consider their nonlegal military experience as an extension of the work 
they were engaged in immediately prior to entering military service. AU Examination 
Announcement No. 318 (May 1984) at p.7. This would assist private sector attorneys who 
suffered a break in their legal careers due to military service. But it could also lead to anomalies: 
if a lawyer with a short term of litigating experience joined the military to work on procurement 
matters for 10 years, the result would be 1 1 years of highly qualifying litigating experience. 

^^^''See notes 997-1012 supra, and accompanying text. 

^^^See 5 USC §2108(3) ("preference eligible . . . does not include applicants for, or 
members of, the Senior Executive Service. . . .") 



962 Verkuil, Gifford, Koch, Perce, and Lubbers 



since at the time of the creation of the SES, ALJs, despite their supergrade 
status, were not included because of concerns that it would be inappropriate to 
subject them to performance evaluations. 

If, however, a similar exemption for AU hiring remains infeasible for 
political reasons, the extent of the preference should be significantly reduced. 
At present, the 5 or 10 points added to the unadjusted final rating are, in 
effect, determinative of selection in most instances. As Judge Etelson has 
observed, it seems silly for OPM to calibrate each applicant's rating to 
hundredths of a point (e.g., 86.04) and "such microcalibration is rendered 
even more ludicrous in the context of an examination to which the 5- and 10- 
point veterans preferences apply, preferences which override, respectively, 500 
or 1000 of OAU's calibrations. "'°^^ In practice, veteran applicants' leapfrog 
over nonveterans. The average nonveteran's unadjusted final rating is 88.07— 
much higher than the average 10-point veteran (83.71) or 5 -point veteran 
(85.71). Yet the addition of the points jumps the average 10-point veteran to 
93.71 and the 5-point veteran to 90.71. 

These bonus ix)ints seem way too high in the context of a hiring range that 
effectively extends from only 85 to 100. Moreover, the preference is 
compounded by the requirements that agencies select from a certificate of the 
top three eligibles and that they not pass over a veteran who scores as high as 
or higher than a nonveteran. '°* Thus, not only do veterans rise to the top of 
most certificates, agencies have little leeway within the certificates. So it is 
hardly surprising that while veterans made up only 39.42% of all applicants 
since 1984, they were 67.47% of all appointees from the register. '°^' Nor is it 
surprising that most agencies have sought to do most of their hiring through 
transfers, not from the register, or that agencies who use non-AU adjudicators 
have devised ways to minimize the impact of veterans preference. 

There have been calls for reducing veterans preference in AU selection for 
a long time. As mentioned above, the Kennedy Temporary Administrative 
Conference recommend an exemption for hearing examiner selection. A 1969 
study for the permanent Conference pointed to its "pernicious effect as to the 
rational ranking of candidates. "'°^ That study went on to recommend three 
alternate solutions: a pass-fail register; selection from anyone in the register, 
but with ratings noted on the register; or enlargement of the rule of 3 to a rule 
of 15. Conference Recommendation 69-9 states: 



•o^'EtcJson, supra note 958 at 193. 

1O6O5 use §3318. This provision also would be rendered inapplicable if AU positions were 
removed from the con^etitive service. 

'^'5tftf note 1004 supra, and accompanying text. 
'°*2park , supra note 995 at 404. 



The Federal Administrative Judiciary 963 



4. The Veterans Preference Act should be amended to permit 
the selection of [AUs] for each vacancy from the top 10 
available persons then appearing on the register, determined 
on the basis of examination and ranking without reference to 
veterans preference. ^^^ 

No action was taken based on Recommendation 69-9 and the situation 
continues to cause problems. As Chief AU Paul Cross of the Interstate 
Conmierce Commission wrote in 1989:'^ 

As some of you know, I am interested in the subject of 
veterans preference in AU selection. It is not because I am 
against veterans preference. Instead, it is my view that 
veterans are not being truly benefited because there are so 
few ALT appointments. The appointment action, some of it 
massive, is happening elsewhere. One basic reason for this 
is that most agencies do not want to hire those at the top of 
the list of AU eligibles, especially at the GS-16 level. 
Meanwhile, our competence, our pay and our status is 
degraded. As a group, we are too old, too white and almost 
exclusively male. We are not representative of the general 
population of highly successful attorneys. There is, in short, 
a major flaw in the selection process which must be 
eliminated. 

No judge at any other level of government, including any 
within the greatly increasing number of Federal 
Administrative Judges, is selected on the basis of veterans 



'**^ACUS Recommendation 69-9, "Recruitment and Selection of Hearing Examiners; ..." 
1 CFR §305.69-9 (1989). The American Bar Association adopted a resolution supported by its 
Section of Administrative Law urging legislation to exempt ALJs from veterans preference in 
August 1976. Letter from Herbert O. Sledd, Secretary, ABA to Robert Anthony, Chairman 
ACUS, August 25, 1976. See also the recommendation of the Senate Governmental Affairs 
Committee, supra note 1034 at 130: "In the AU selection process (a) the 'rule of three' should 
be abolished, allowing the agency to select any candidate on the register, (b) veterans' preference 
should be abolished. ..." The Civil Service Commission's own Advisory Committee on 
Administrative Law Judges in 1978 also recommended that AUs be removed from the coverage 
of the Veterans Preference Act. 

'°^Memorandum re "Revalidating the Administrative Law Examination" from Paul S. Cross, 
Chief AU, Interstate Commerce Comnussion to (OPM) Steering Committee, September 20, 
1989. Reproduced in "Social Security Administrative Law Judges - The Need to Change the 
Administrative Law Judge Examination." Tab I, Submitted to OPM by the National Treasury 
En^>loyees Union (September 1989). 



964 Verkuil, Gifford, Koch, Pierce, and Lubbers 



preference. Even the judges at the Veterans Department and 
the Defense Department are not so selected. We too I assert 
are judges, not clerks and I urge that we fully accept our 
status. 

Moral leadership is required. It is easy to say that the subject 
of veterans preference is too emotional or too political to 
confront. However, most veterans who would become AU's 
are not appointed because of the use of various alternative 
hearing arrangements which include use of Employee Boards, 
Administrative Judges and Written Procedures. It is grossly 
hypocritical to insist that ALJ's be veterans while there is a 
stampede to circumvent the ALT selection process. 

It is high time that the impact of veterans preference in the AU selection 
process be either reduced or eliminated. Ideally, the ALT selection process 
should be exempted from the Veteran Preference Act in the same manner as is 
the SES selection process. In any event, AUs should be classified as excepted 
service positions, subject to the same general veterans preference as attorneys 
but without the mechanical application of veterans preference points that has 
such a significant impact on the current AU selection process. If these steps 
remain politically impossible, at a minimum, the impact of the preference 
should be lessened through a reduction in points or elimination of the rule of 
three requirements. 

5. Specialized Experience 

As discussed, it used to be standard practice for agencies, with OPM's 
active concurrence, to "selectively certify" applicants based on specialized 
experience. The 1979 OPM Announcement for AU listed nine agencies and 
departments that required 2 years of specialized experience in their areas of 
regulation: USDA, CAB, FCC, FERC, IRS, ICC, NLRB, SEC and the U.S. 
Coast Guard. '^^ In addition, SSA required a demonstrated proficiency in 
Spanish and English for its Puerto Rican positions. Persons with such a 
certification could be provided to these agencies on special certificates, thus 
bypassing many other eligibles. 

In 1984, OPM abandoned this practice. Critics of it included the ABA, 
which wished to encourage hiring generalist judges and who feared excessive 
"inbreeding" of pro-agency lawyers. The AU organizations, most of whom 



'^^Announcement No. 318, Administrative Law Judge, U.S. Office of Personnel 
Management (October 1979) 18-21. 



The Federal Administrative Judiciary 965 



were supporting the concept of a unified corps of AUs removed from the 
agencies, also opposed selective certification—viewing it as antithetical to the 
unified corps concept. 

OPM's 1984 Announcement indicated that agencies could continue to give 
"priority consideration" to applicants with special qualifications, but only if 
the agencies "justify by job analysis that special qualifications enhance 
performance. " '°^ 

Since 1984 few agencies have been doing much hiring off the register, so 
this issue has not been pressed by the agencies, with one glaring exception—the 
Social Security Administration. SSA, which has been hiring off the register, 
has repeatedly pressed OPM to make it easier to appoint as ALJs its SSA staff 
attorneys, known as decision-writers (because in most cases they write the 
actual decisions for the AUs who preside over these high-volume cases). '°^^ 

In 1988 SSA Commissioner Hardy asked OPM to provide SSA with lists of 
candidates who had agency-specific experience. '°^ OPM's Director Homer 
replied that SSA first had to justify this request by a job analysis. '°^ SSA's 
internal reaction was that preparation of such an analysis would be costly 
(estimated at $100,000) and that it was not a realistic option because to be 
"acceptable" to OPM, the analysis would require involving AUs from other 
agencies "who have a decided interest against establishing any special agency- 
specific qualifications. "1°^ 

In 1989 newly-appointed SSA Commissioner King again raised the issue 
with OPM, reiterating how important it was to be able to hire AUs who have 
a thorough knowledge of Social Security laws and programs. '°^' Also in that 
year, the HHS Disability Advisory Committee called on OPM to give SSA a 
greater say in the selection process and in the development of criteria for SSA 
AUs.'o^ 

This dispute, in part, reflects the problems with the overall selection 
process discussed above. But it also suggests a more fundamental problem 
with the goal of treating AUs as entirely interchangeable and fungible. To a 



^^See nott 951, supra. 

^^"^See GAO study, supra note 1002. 



'**^Letter from Dorcas R. Hardy, SSA Commissioner, to ConsUnce Homer, OPM Director, 
October 6, 1988 (Reproduced at Tab B of NTEU submission to OPM). 

•°^*Letter from Constance Homer to Dorcas Hardy, November 23, 1988. Id. at Tab C. 

'°^ote to Commissioner Hardy from Louis Enoff, Deputy Commissioner, December 23, 
1988. W. atTabD. 

'°^* Letter from Gwendolyn S. King, SSA Commissioner, to Constance Newman, OPM 
Director, October 23, 1989. Id. at Tab E. 

'^'^Recommendations of the Committee reproduced at Tab F (dated July 25, 1989). 



966 Verkuil, Gifford, Koch, Pierce, and Lubbers 



large extent, of course, they are. The loan program'°^ and the prevalence of 
transfers are ample testimony to the capability of many AUs to handle a wide 
variety of cases. Indeed, the recent pay reform legislation, which essentially 
abolished the longstanding distinction between GS- 15 (mostly SSA) and GS-16 
AUs and combined them into one pay level (AL-3, with six sublevels based 
entirely on seniority), and also thereby collapsed the two registers into one, 
was a strong push toward fungibility and interchangeability.*°^^ 

But even if the idea (best advocated by then-Professor Scalia) of a multi- 
grade ladder structure for AUs is completely dead,'°^^ there is still reason to 
consider the need for acknowledging specialized expertise in the selection of 
AUs. 

If the above proposal to allow agency selection of any OPM-qualified 
eligible is accepted, there would be no need for any extra credit for specialized 
expertise (although OPM could still be charged with verifying it, as a 
convenience to agencies). But if the system is not opened up as suggested, 
OPM should administratively ease its requirements for such extra credit and 
should permit something closer to the old system of selective certification. 

Under either approach, the question of SSA's hiring needs presents special 
problems. SSA employs almost 80% of all AUs. Given SSA's importance in 
the administrative adjudication arena and the strength of its concerns about this 
issue, OPM should consider developing a separate register for SSA hiring, 
with additional experience criteria (KSAs) geared to the sort of nonadversarial 
hearings undertaken by SSA AUs. Presumably SSA staff attorneys (even GS- 
12s) as well as the growing bar of SSA private practitioners could score well 
on such KSAs. Only SSA should be permitted to hire off the register, '°''*' 
although applicants could apply to be on both registers. To prevent 
gamesmanship by other agencies, SSA AUs could not be hired laterally by 
other agencies without special safeguards (e.g., reapplication to the "main" 
register, review by an agency executive review board, a 2-year waiting 
period). 

Development of this separate register would solve the problem presented by 
the agency that employs almost 80% of all AUs and would do so without 
affecting the rating process for other AUs. 



'^^5<rtf Scalia, The Hearing Examiner Loan Program, 1971 Duke L.J. 319. 
^^^^See note 949, supra. 

^^^^See Scalia, supra note 932 at 75 ("A Return to a Multi-Grade Structure"). 
^Possibly this register could be opened to other benefits claim handling agencies. 



The Federal Administrative Judiciary 967 



F. Conclusion 

The prcKess proposed in this chapter for hiring ALJs is not a novel or 
radical one. Many of its elements have been proposed before, and it largely 
corresponds to the one used for hiring other high-level career federal 
employees. It would maintain the key role for OPM in developing the 
minimum qualifications for the position and in examining and rating the 
eligibility of individual applicants, but it would do so much more efficiently, 
while safeguarding merit selection principles, improving recruitment of 
desirable candidates and satisfying the concerns of hiring agencies. 

VI, The Scope and Degree of ALJ and Non-ALJ 
Independence 

The APA insulates AUs from potential sources of agency pressure in 
several ways. Most non-AU adjudicatory decisionmakers are not protected by 
analogous statutory safeguards. Many agencies that use non-ALJ 
decisionmakers insulate those decisionmakers from potential sources of agency 
pressure in a variety of ways, however. See Chapter VI (B) of this report. 

Conferring on agency adjudicatory decisionmakers a high degree of 
independence has significant advantages. But going too far in that direction 
can produce disadvantages as well. The administrative law system has 
struggled for decades to select, and to implement, a system of adjudication that 
incorporates the optimal degree of independence of adjudicatory 
decisionmakers. Any system necessarily reflects a compromise among 
conflicting goals. 



A. Advantages of Independence 



1. The Constitutional Requirement- Avoidance of Bias 

The primary advantage of ensuring that administrative adjudicators have a 
high degree of independence from the agencies they serve lies in avoidance of 
the potential for bias in favor of the agency's interests. Our legal system, 
indeed the Anglo-American legal tradition, has long placed a high value on 
adjudication by unbiased decisionmakers. This value underlies the 
requirement of Article III, §1, that federal "judges... shall hold their offices 
during good behavior, and shall, at stated times, receive for their services 
compensation, which shall not be diminished during their continuance in 
office." Due process requires a neutral, or unbiased, adjudicatory 



968 Verkuil, Gifford, Koch, Pierce, and Lubbers 



decisionmaker. Scholars and judges consistently characterize provision of a 
neutral decisionmaker as one of the three or four core requirements of a system 
of fair adjudicatory decisionmaking. '°^ The requirement dates back at least as 
far as seventeenth century England. In Bonham's Case,'°^ Lx)rd Coke used 
natural law reasoning to announce the principle that no person can be a judge 
in his own cause. 

The problem lies in defining and applying the neutral decisionmaker 
requirement. Some forms of bias are permissible, even desirable, in a 
decisionmaker. Other forms of bias are impermissible. The Supreme Court's 
decisions on impermissible bias leave Congress and agencies significant 
flexibility to determine the extent to which they choose to insulate adjudicatory 
decisionmakers from many forms of potential bias. The Court has held that 
such decisionmakers need not enjoy the exceptionally high degree of 
independence the APA accords to ALJs.'^''^ 

The due process requirement of a neutral decisionmaker has been 
supplemented by enactment of numerous statutory prohibitions on 
impermissible bias. The statutory criteria often are stated in broad terms that 
mirror the language courts use when they apply the due process requirement of 
a neutral decisionmaker. As a result, in many cases it is difficult to determine 
whether a court's conclusion that a decision was infected by impermissible bias 
is based on constitutional law reasoning or on interpretation and application of 
a statute that uses broad language to describe impermissible bias. 

The concept of "bias" has at least five meanings. Although the five kinds 
of bias overlap to some extent, the main ideas about bias in an adjudication 
may be stated in five sentences, each of which deals with one kind of bias: (1) 
A prejudgment or point of view about a question of law or policy is not, 
without more, a disqualification. (2) Similarly, a prejudgment about 
legislative facts that help answer a question of law or policy is not, without 
more, a disqualification. (3) Advance knowledge of adjudicative facts that are 
in issue is not alone a disqualification for finding those facts, but a prior 
commitment may be. (4) A personal bias or personal prejudice, that is an 
attitude toward a person, as distinguished from an attitude about an issue, is a 
disqualification when it is strong enough and when the bias has an unofficial 
source; such partiality may be either animosity or favoritism. (5) One who 
stands to gain or lose by a decision either way has an interest that may 



^^'^See, e.g., Amett v. Kennedy, 416 U.S. 134, 171 (1974) (While, J., concurring and 
dissenting); Verkuil, A Study of Informal Adjudication Procedure, 43 U. Chi. L. Rev. 739 
(1976); Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267 (1975). 

»0'^8 Coke 114a, 118a, 77 Eng. Rep. 646, 652 (1610). 

^^'^See Marcello v. Bonds, 349 U.S. 302 (1955); Withrow v. Larkin, 421 U.S. 35 (1975). 



The Federal Administrative Judiciary 969 



disqualify if the gain or loss to the decisionmaker flows fairly directly from the 
decision. 

The core of each of the five propositions is supported by clear and 
noncontroversial law, except that the first two propositions are sometimes 
misunderstood, especially the effect of a closed mind on issues of law or policy 
or issues of legislative fact. With that one exception, the problems about the 
law of bias do not relate to the soundness of the five propositions but relate to 
their application and to drawing lines in the borderland of each. 

a. Personal Interest in Case Outcome 

Bias based on a decisionmaker's j^ersonal interest is the easiest of the five 
forms of bias to understand. One who stands to gain or lose personally and 
fairly directly by a decision either way is disqualified by reason of interest to 
participate in the exercise of judicial functions. A disqualifying interest may 
be pecuniary or may involve the imbalance that is assumed to persist in one 
who has played the role of advocate in the same case. ^'^ 

The basic case on pecuniary interest of an officer with adjudicatory 
responsibilities is Tumey v. Ohio.^^^ Those accused of violating the 
prohibition laws were tried before a mayor who was allowed to retain, as his 
own compensation, costs assessed against defendants who were convicted, but 
the mayor received no such compensation from defendants who were not 
convicted. The Court held that the system denied due process: "Every 
procedure which would offer a possible temptation to the average man as a 
judge to forget the burden of proof required to convict the defendant, or which 
might lead him not to hold the balance nice, clear and true between the State 
and the accused, denies the latter due process of law. "'*^ 

In Gibson v. Berryhill,^^^ the Supreme Court held the Alabama Board of 
Optometry, composed solely of independent practitioners, disqualified from 
deciding that optometrists who were employed by a company were engaged in 
"unprofessional conduct" by "aiding and abetting a corporation in the illegal 
practice of optometry." The Court recited the finding of the district court that 



1080 J g u.S.C. §208 makes it a crime for an officer or employee of the executive branch to 
participate in a determination in which he, his relative, or his organization has a financial interest, 
except that a regulation may make a fmancial interest "too remote or too inconsequential.' 
Executive Order 11222, as amended by numerous subsequent Executive Orders, and as codified 
in 5 CFR 735, prescribes "Standards of Ethical Conduct for Government Officers and 
Employees." For instance, "Employees may not (a) have direct or indirect fmancial interests that 
conflict subsUntially...with their responsibilities and duties as Federal employees..." 

'°^'273 U.S. 510 (1927). 

^^d. at 532. See also Ward v. Village of Monroeville, 409 U.S. 57 (1972). 

'°^3411 U.S. 564 (1973). 



970 Verkuil, Gifford, Koch, Pierce, and Lubbers 



the coii^>any "did a large business in Alabama, and that if it were forced to 
suspend operations the individual members of the Board, along with other 
private practitioners of optometry, would fall heir to this business. "'°^ The 
Court accorded significant deference to the district court's findings. "It is 
sufficiently clear from our cases that those with substantial pecuniary interest 
in legal proceedings should not adjudicate these disputes.... As remote as we 
are from the local realities underlying this case and it being very likely that the 
District Court has a firmer grasp of the facts and of their significance to the 
issues presented, we have no good reason on this record to overturn its 
conclusion and we affirm it."'°" In Friedman v. Rogers y^^'^ however, the Court 
held that a statutory requirement that four of six members of an optometry 
board be members of a specified organization of optometrists does not violate 
due process. 

Members of a school board whose collective bargaining negotiations with a 
union had broken down were deemed disqualified by the Wisconsin Supreme 
Court to adjudicate a question whether to discharge striking teachers. The 
U.S. Supreme Court reversed, holding that "the Board's prior role as 
negotiator does not disqualify it to decide that the public interest in 
maintaining uninterrupted classroom work required that teachers striking in 
violation of state law be discharged. "'°^ 

In Arnett v. Kennedy, ^^^ the Court held that a supervisor is not 
disqualified from deciding that a government employee should be terminated 
for alleged wrongdoing even though the alleged wrongdoing consisted of 
accusations against the supervisor who later adjudicated the dispute. Justice 
White dissented on the basis that the supervisor was impermissibly biased. 

The Court unanimously upheld a system of adjudication that relied 
primarily on decisionmakers who are employees of private firms in Schweiker 
V. McClure.^^^ The government delegated important Medicare 

decisionmaking to hearing officers employed by insurance companies. A 
lower court found "intolerable risk of hearing officer bias against claimants." 



'«^W. ai579. 

'<**440 U.S. 1 (1979). See also Marshall v. Jerrico, 446 U.S. 238 (1980) (fact that agency 
waa allowed to retain all money collected by imposing civil penalties did not disqualify agency's 
regional administrators from assessing such penalties). The court also pointed out that the Office 
of AUs at the Department of Labor had a separate budget and did not benefit from the 
reimbursement, 440 U.S. 248, n.lO. 

'^''Hortonville Joint School District v. Hortonville Education Ass'n, 426 U.S. 482, 494 
(1976). 

'*^416 U.S. 134 (1974). 

>°^456 U.S. 188 (1982). 



The Federal Administrative Judiciary 97 1 



The Supreme Court upheld the system because both the claim payments and 
the hearing officers' salaries were from government funds. It found no 
evidence that either the insurance carriers or the hearing officers they 
employed had a source of impermissible bias against claimants. 

b. Personal Bias 

Personal bias can support disqualification of an adjudicatory decisionmaker 
as easily as can bias based on personal interest in the outcome of a case. The 
concept of "personal" bias or prejudice puts the emphasis on an attitude toward 
persons and does not involve an attitude about issues of fact, law, policy or 
discretion. Impermissible personal bias includes: (1) bias against an 
individual based on a prior hostile unofficial relationship with the individual; 
(2) bias against an individual based on the individual's personal characteristics 
(e.g., race, religion, or ethnic origin); and, (3) bias toward an individual based 
on a prior unofficial positive relationship with the individual (e.g., a close 
friendship or an amorous relationship). 

Berger v. United States^^^ is the major case on disqualification based on 
personal bias. The Court held six to three that a judge was disqualified for a 
prejudice against "pro-Germans," including the defendants. TTie judge had 
said that "one must have a very judicial mind, indeed, not to be prejudiced 
against the German Americans in this country....! know a safeblower...and as 
between him and this defendant, I prefer the safeblower. " 

In the early years of the NLRB, many lower court decisions drew 
inferences of impermissible personal bias of hearing officers based on the 
court's perception that the hearing officer was consistently favoring one party 
to an adjudication. This is an area in which bias is hard to verify or to refute. 
It is also an area in which personal bias is difficult to distinguish from bias 
based on a policy preference for or against organized labor. The first form of 
bias is impermissible. The second form is inevitable. As long as adjudicatory 
decisionmakers are human beings, they will have biases based on their policy 
preferences. Generally, the Supreme Court is more reluctant than many lower 
courts to draw an inference of impermissible bias in this type of situation.'*^' 

To be disqualifying, personal bias must have a prior unofficial source. 
Thus, for instance, a decisionmaker would be disqualified if the bias were the 
product of a prior personal altercation with a party. Bias that has its source 
only in a prior official relationship between the decisionmaker and the party is 
not necessarily disqualifying. The Court recognizes that a decisionmaker often 
develops strong feelings for or against a party based on official dealings with 



'°*^55 U.S. 22 (1921). 

'^'See NLRB v. Pittsburg S.S. Co., 337 U.S. 656 (1949). 



972 Verkuil, Gifford, Koch, Pierce, and Lubbers 



the party or on official exposure to the evidence concerning the party's 
behavior. The Court acquiesces in bias of this type both because it is 
inevitable and because the Court believes that a decisionmaker can overcome 
feelings toward a party that are formed in the course of performing official 
duties. ''^^ 

c. Prior Exposure to AcUudicative Facts 

An adjudicatory decisionmaker can be disqualified for prejudging disputed 
issues of adjudicative fact—issues of who did what, where, when, how, why, 
and with what motive or intent.'^ A decisionmaker is not disqualified simply 
because of prior exposure to evidence relevant to such adjudicative facts, 
however. 

The line is drawn between an advance commitment about the facts and 
some previous knowledge of the facts. The best case holding that mere 
exposure to adjudicative facts is not a disqualification may be Withrow v. 
Larkin.^^^ A Wisconsin board in an investigative hearing listened to testimony 
about Dr. Larkin, and then sent him a notice of "a contested hearing" to 
determine whether his license to practice medicine should be suspended. At 
that point the district court held the board disqualified. The Supreme Court 
held that the board was not disqualified to hold the contested hearing or to 
make the decision. The Court said: "Not only is a biased decisionmaker 
constitutionally unacceptable but 'our system of law has always endeavored to 
prevent even the probability of unfairness. ' "'^^ But it continued: 

The contention that the combination of investigative and 
adjudicative functions necessarily creates an unconstitutional 
risk of bias in administrative adjudi cat ion... must overcome a 
presumption of honesty and integrity in those serving as 
adjudicators; and it must convince that, under a realistic 
appraisal of psychological tendencies and human weakness, 
conferring investigative and adjudicative powers on the same 
individuals poses such a risk of actual bias or prejudgment 



^^See Withrow v. Urkin, 421 U.S. 35, 53-55 (1975); U.S. v. Grinnell Corp., 384 U.S. 
563. 583 (1966). 

'^^Cinderella Career and Finishing Schools, Inc. v. FTC, 425 F. 2d 583 (D.C. Cir 1970). 
'^421 U.S. 35 (1975). 
'^'Id. at 47. 



The Federal Administrative Judiciary 973 



that the practice must be forbidden if the guarantee of due 
process is to be adequately implemented.'**'^ 



d. Prior Position on Legal Issues or Legislative Facts 

A previously announced position on a disputed issue of law, policy, or 
legislative fact does not disqualify a decisionmaker. The best case to illustrate 
this important principle is FTC v. Cement Institute. ^^ The Commission issued 
a cease and desist order against use of a multiple basing-point system in selling 
cement. Before instituting the proceeding, the Commission conducted a full 
investigation and made reports to Congress and to the President expressing the 
opinion that the multiple basing-point system was the equivalent of price fixing 
in violation of the Sherman Act. The companies contended that the 
Conmiission had expressed a "prejudgment of the issues" and that it was 
"prejudiced and biased." The Court upheld the Commission's order. The 
Court specifically said that it was deciding "on the assumption that such an 
opinion had been formed by the entire membership of the Commission as a 
result of its prior official investigation."'*^ The facts that were in dispute in 
the Cement Institute case were legislative facts, not adjudicative facts. The 
Court made no mention of any question of prejudgment about what any 
particular company had done. Issues about acts or practices of particular 
companies were either nonexistent or incidental. The central question of fact 
was whether the multiple basing-point system restrained competition. 
Prejudgment of legislative facts is not a basis for disqualifying a 
decisionmaker. '°^ 



'*^<f. In some circumstances, the cost of assigning separate individuals to investigation and 
adjudication of a class of disputes seems excessive. In such circumstances the court permits 
decisionmaking by the investigator. A school principal investigates a claim of student misconduct 
and then makes a decision. Despite the combination of investigating and prosecuting, such a 
hearing is consistent with due process under Goss v. Lopez, 419 U.S. 565 (1975). The Court 
also approved investigation and adjudication by the same officers within a prison in Wolff v. 
McDonnell, 418 U.S. 539 (1974). 

'°^333 U.S. 683 (1948). 

'°*W. at 700. 

'^^Other case law supports the Cement Institute decision. An outstanding case is United 
Sutes V. Morgan, 313 U.S. 409 (1941), known as the Fourth Morgan case. After the Supreme 
Court had held in the Second Morgan case, 304 U.S. 1 (1928), that the Secretary of Agriculture 
had denied a fair hearing to the market agencies of the stockyards, the Secretary vigorously 
criticized the Court's decision in a letter to the New York Times, asserting that the $700,0(X) at 
issue "rightftjlly belongs to the farmers." The market agencies then charged that the letter 
disqualified the Secretary from reconsidering the case after it was remanded to him. The 
Supreme Court rejected the charge: 



974 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Courts sometimes have disqualified agency decisiomnakers as 
impermissibly biased when the source of the bias is congressional pressure to 
find contested adjudicatory facts in a manner preferred by members of the 
legislature. The leading case is the Fifth Circuit's opinion in Pillsbury v. FTC. 

1100 



e. Separating Functions 

Most agencies perform many functions, including policymaking, 
investigation, prosecution, and adjudication of disputes. At least in some 
contexts, due process requires some degree of separation of some of these 
functions. It may be easiest to understand the relationship between separation 
of functions and due process by thinking about the structure we use for 
adjudicating criminal cases in the United States The policymaking ftinction is 
performed by one institution— the legislature. The investigative function is 
performed by another institution~the police. Prosecution is performed by 
another institution~the district attorney. Adjudication is performed by a 
fourth institution—the courts. Moreover, we use numerous devices to ensure 
that the adjudicatory decisionmakers— judges— are independent of the other 
participants in the process and are insulated from political forces. Combining 
all four functions in a single individual would yield a criminal justice system 
that would not satisfy anyone's standard of fundamental fairness in 
adjudicating criminal disputes. 

Critics of our system of administrative justice have long used the strict 
separation of functions among agencies in our criminal justice system as a 
paradigm for criticism of the fairness of administrative adjudication conducted 
by typical multi-function agenciei. The criticiim ii uiumlly followed by • 
demand that the legislature assign the functions of policymaking, investigation, 
prosecution, and adjudication to separate agencies, or that the courts hold 



But, intrinsically, the letter did not require the Secretary's dignified denial of 
bias. That he not merely held, but expressed, strong views on matters believed 
by him to have been in issue, did not unfit him for exercising his duty in 
subsequent proceedings ordered by this Court. As well might it be argued that 
the judges below, who had three times heard this case, had disqualifying 
convictions. In publicly criticizing this Court's opinion the Secretary merely 
indulged in a practice familiar in the long history of Anglo-American litigation, 
whereby unsuccessful litigants and lawyers give vent to their disappointment in 
tavern or press. Cabinet officers charged by Congress with adjudicatory 
ftmclions are not assumed to be flabbv creatures any more than judges are. 
Both may have an underlying philosophy in approaching a specific case. But 
both are assumed to be men of conscience and intellectual discipline, capable of 
iudging a particular controversy fairly on the basis of its own circumstances. 
Nothing in this record disturbs such an assumption. 313 U.S. at 421 . 

'*°0354 F.2d 952 (5th Cir. 1966). 



The Federal Administrative Judiciary 975 



unconstitutional any system of adjudication implemented by a multi-function 
agency. *'°' 

Generally, both legislatures and courts have declined to accept these 
arguments, for good reason—the analogy on which they are premised is weak 
at many points. First, the strict agency-based separation of functions approach 
we have chosen in the criminal justice context is extremely expensive and 
inefficient. It may be justified in that context because of the extraordinarily 
high value we place on avoiding the risk of erroneously incarcerating people. 
It by no means follows that we should select the least efficient and most costly 
institutional structure for adjudicating disputes concerning social security 
benefits, personnel decisions, utility prices, environmental regulation, etc. 

Second, even in the unique context of criminal adjudication and potential 
incarceration, some combinations of functions are not inconsistent with 
fundamental fairness. There is no inherent conflict among the functions of 
policymaking, investigation, and prosecution. Indeed, district attorneys often 
perform some investigative functions, and they make many policy decisions in 
the process of exercising prosecutorial discretion. Even the investigative and 
adjudicative functions are not inherently inconsistent. Many nations with well- 
respected systems of criminal procedure assign some investigative 
responsibilities to judges. 

The most obvious potential for conflict arises from combining the 
prosecutorial function and the adjudicative function. In the criminal justice 
context, strict separation of these functions makes good sense. Separation of 
even these functions is much less important in the administrative justice 
context, however. Many agency adjudications are not analogous to criminal 
trials. When an agency decides whether an applicant is eligible for a statutory 
benefit, for instance, no one in the agency performs a function close to that of 
a prosecutor. Even when the analogy is closer (e.g., a proceeding to decide 
whether to impose an administrative sanction), the classes of disputes are 
easily distinguished based on the penalties at stake. No agency has the power 
to order incarceration. 

Third, separation of functions can be implemented at the level of 
individuals rather than at the agency level. To the extent that combining 
functions creates a conflict of interest, that conflict is largely a function of 
psychology and human emotions. No one would want the prosecuting district 
attorney to decide whether one is guilty, because district attorneys prefer to 
"win" cases rather than to "lose" cases. It is difficult for anyone who has 



"°'5tftf, e.g.. Ash Council Report on Selected Independent Regulatory Agencies (1971) 
(urging reassignment of adjudicatory functions from agencies to an administrative court); 
Presidents Committee on Administrative Management (1937) (urging that no agency be given 
both adjudicative and prosecutorial responsibilities). 



976 Verkuil, Gifford, Koch, Pierce, and Lubbers 



worked long and hard to prove a proposition (e.g., the defendant is guilty), to 
make the kind of dramatic change in psychological perspective necessary to 
assess that proposition objectively (e.g., to decide whether the defendant is 
guilty). That potentially powerful psychological conflict of interest is internal 
to an individual, however. The potential for conflicts of interest to infect 
adjudicatory decisionmaking diminishes greatly if functions are separated at 
the individual level (i.e., an individual cannot both prosecute a case and decide 
that case). Separating functions within an agency is likely to cause the 
individuals in the agency to identify more by function than by agency (e.g., I 
am an agency prosecutor, or I am an agency adjudicatory decisionmaker). The 
studies of the attitudes of .AU and non-AU adjudicators described in Chapter 
IV provide solid empirical support for this phenomenon. 

The treatment of separation of functions in the APA is based on acceptance 
of some combination of the foregoing reasons for rejecting agency-based 
separation of functions. The APA permits an agency to engage in all four 
functions, but it requires an agency to establish and maintain internal 
separation of functions. 

The APA provides in §554(d): 

The employee who presides at the reception of 
evidence... shall make the recommended decision or initial 
decision... unless he becomes unavailable to the agency. 
Except to the extent required for the disposition of ex parte 
matters as authorized by law, such an employee may not— 

(1) consult a person or party on a fact in issue, unless on 
notice and opportunity for all parties to participate; or 

(2) be responsible to or subject to the supervision or direction 
of an employee or agent engaged in the performance of 
investigative or prosecuting functions for an agency. 

An employee or agent engaged in the performance of 
investigative or prosecuting functions for an agency in a case 
may not, in that or a factually related case, participate or 
advise in the decision, recommended decision, or agency 
review... except as witness or counsel in public proceedings. 
This subsection does not apply— 

(A) in determining applications for initial licenses; 



The Federal Administrative Judiciary 977 



(B) to proceedings involving the validity or 
application of rates, facilities, or practices of public 
utilities or carriers; or 

(C) to the agency or a member or members of the 
body comprising the agency. 

The APA separation of functions provision applies only to 
"adjudication required by statute to be determined on the 
record after opportunity for an agency hearing" (i.e., to 
formal adjudication). The APA contains no statutory 
restriction on combining functions when an agency engages 
in "informal adjudication." Informal adjudication is 
governed by very few statutory restrictions on agency 
procedural discretion.^ Agencies conduct more informal 
adjudications than formal adjudications. 

In formal adjudications the words of the APA are susceptible to an 
interpretation that would forbid too much. Section 554(d) states that "An 
employee... engaged in the performance of investigative... functions... in a case 
may not, in that or a factually related case, participate or advise in the 
decision...." That provision operates soundly in an accusatory case in which 
an investigator is attempting to prove a case against a respondent. But about 
four-fifths of all adjudications in federal agencies are claims cases, in which an 
investigator may be as much motivated to develop facts in favor of a claimant 
as against the claimant; for all such adjudication, the APA provision, if carried 
out according to its literal language, is harmful. Fortunately, most claims 
disputes are not governed by the formal adjudication procedures of the APA. 
The Supreme Court upheld an adjudicatory system in which the adjudicators 
also perform investigatory functions in Richardson v. Perales?'^ 

The APA's excessive language forbidding combinations of investigating 
and judging in formal adjudications may be cured by legislative history. The 
word "investigating" in §554(d) might plausibly be interpreted to mean 
investigating in an accusatory case. This interpretation is supported by a 
statement in the Senate Judiciary Committee Print of 1945:^ "The first 
sentence of subsection (c) [now §554(d)] is designed to assure, in so-called 
'accusatory' proceedings, that those who hear the case shall not participate in 
its decision. The remainder of the subsection, in such cases, is designed to 



'^See PBGC v. LTV, 1 10 S.Ct. 2668 (1990). 

2^402 U.S. 389, 410(1971). 

^Sen. Doc. No. 248, 79th Cong., 2d Sess. 24 (1946) (emphasis added). 



978 Verkuil, Gefford, Koch, Pierce, and Lubbers 



achieve an 'mteraal' segregation of deciding and prosecuting functions." Even 
though subsection (c) said nothing about a hmitation to accusatory 
proceedings, the words we have italicized seem to limit the provision to 
accusatory proceedings. 

Shortly after Congress enacted the APA, the Supreme Court decided a case 
involving the legality of an agency adjudicatory system that did not provide 
parties the strong protection from potential bias the APA affords in formal 
adjudications. In particular, the system attacked did not provide for 
decisionmaking by officers who were independent of the agency and did not 
prohibit ex parte communications between officers responsible for adjudicatory 
decisionmaking and agency officials involved in policymaking, investigation, 
or even prosecution. In Wong Yang Sun v. McGrath,^^^^ the Court was 
presented with a challenge to the procedures used to adjudicate disputes over 
potential deportation of an alien. Congress did not require the agency to use 
formal adjudication in deportation proceedings. The Court concluded, 
however that the recently enacted APA provisions governing formal 
adjudication reflected the minimum procedural safeguards Congress intended 
to require in adjudicating cases as important as deportation disputes. The 
language of the statute governing deportation proceedings was ambiguous. 
The Court interpreted the statute to require use of formal adjudication and 
suggested that it might adopt the APA's formal adjudication procedures as the 
constitutional floor for adjudicating important disputes. In the Court's words: 
"It might be difficult to justify as measuring up to constitutional standards of 
impartiality a hearing tribunal for deportation proceedings the like of which 
has been condemned by Congress as unfair even where less vital matters of 
property rights are at stake. "''^^ The flaw in deportation decisionmaking 
identified by the Court was inadequate separation of functions. The agency 
officials responsible for adjudicating deportation disputes reported to officials 
who had enforcement responsibilities. 

Congress disagreed with the Court's decision in Wong Yang Sun. It 
amended the Immigration Act in ways that explicitly authorized an 
adjudicatory decisionmaking structure in which the hearing officer reports to 
officials with enforcement responsibility. In Marcello v. Bonds, ^^^'^ the Court 
retreated from its dicta in Wong Yang Sun and held the congressionally 
authorized decisionmaking structure constitutionally permissible. The Court 
characterized the due process challenge as "without substance when considered 
against the long-standing practice in deportation proceedings, judicially 
approved in numerous decisions in the federal courts, and against the specific 

"0^39 U.S. 33 (1950). 
"°<*/<f. at 50-51. 
•'*"349 U.S. 302 (1955). 



The Federal Administrative Judiciary 979 



considerations applicable to deportation which the Congress may take into 
account in exercising its particularly broad discretion in immigration 
matters.""* Two dissenting Justices complained that the Court had acquiesced 
in a process in which "the hearing officer adjudicated the very case against 
petitioner which the hearing officer's superiors initiated and prosecuted.""*' 

Taken as a whole, the Court's decisions permit Congress and agencies to 
conduct administrative adjudications through use of a wide variety of 
mechanisms. The APA provisions applicable to formal adjudication require 
relatively strict internal separation of functions and confer on ALJs a high 
degree of statutory independence from the agencies at which they serve. The 
Court's decisions make clear that these unusually powerful safeguards of 
decisional independence are not required by due process. The Court upheld 
the combination of prosecution and adjudicating in Marcello and Accardi. The 
Court has also upheld many state and local systems of adjudicatory 
decisionmaking that involved less decisionmaker independence and greater 
merging of roles and functions than exists in virtually any federal adjudicatory 
system. ' ' '° 

2. Greater Public Acceptance 

It seems likely that individuals whose rights are adjudicated by agencies 
feel better about the result and the fairness of the process when they perceive 
that the decisionmaker is independent of the agency. To the extent that non- 
AU adjudicators are less independent of the agencies at which they serve, and 
to the extent that perception and reality coincide, this increased public 
acceptance should be counted as an additional advantage of using AU 
adjudicators. 

It is hard to know how much significance to attach to this advantage, 
however. An individual's feelings concerning the fairness of an adjudicatory 
process undoubtedly vary with many characteristics of the process (e.g., Is the 



"08/J. at311. 

"^/^. at 315. The same year, in Shaughnessy v. U.S. ex rel. Accardi, 349 U.S. 280 
(1955), the Court acquiesced in an even greater departure from the approach to separation of 
functions and independence of adjudicatory decisionmakers the APA applies to formal 
adjudications. The members of the Board of Immigration Appeals are appointed by the Attorney 
General and serve at his pleasure. The Attorney General announced a program to deport all 
aliens in a class that included Accardi. The Board issued an order of deportation to Accardi in an 
adjudicatory proceeding. The Court upheld the deportation order. Two dissenting Justices 
complained that "the Attorney Generals publicized program made it impossible to expect his 
subordinates to give Accardi 's application that fair consideration which the law requires." Id. at 
293. 

"'°5«, e.g., Withrow v. Larkin, 421 U.S. 35 (1975). 



980 Verkuil, Gifford, Koch, Pierce, and Lubbers 



adjudicator called a "judge"? Does the adjudicator wear a black robe? Is an 
adequate opportunity given to present the individual's views, does the 
adjudicator seem to be a fair-minded person? Is the adjudicator biased against 
the individual?). The most important factor affecting an individual's 
perception of fairness probably is the impression that one is, or is not, given 
an adequate opportunity to present one's views. Thus, the demeanor of the 
adjudicatory officer plays an important role in shaping an individual's 
perception of fairness. The relationship between adjudicator independence and 
perceptions of unfairness is complicated and varies with many factors. 

An individual's skepticism about the fairness of an agency adjudication in 
which one perceives that the adjudicator is, to some extent, dependent on the 
agency undoubtedly varies depending on the nature of the adjudication. That 
concern reaches its apogee in cases in which the agency itself is a party with a 
role adversarial to that of the individual (e.g., a proceeding to impose a 
penalty or sanction or to determine that a prior practice was unlawful). In 
benefits cases, the concern is much less. At most, the individual might fear 
that the agency has a general bias against awarding benefits to conserve the 
scarce funds available as the source of benefits. Given the limited resources 
available to fund benefit programs, a general bias of this type is not necessarily 
inappropriate. 

In cases in which an agency adjudicates disputes between or among private 
entities, individuals perceive unfairness attributable to potential adjudicator 
bias in favor of the agency only to the extent that they perceive that the agency 
itself is systematically biased against one or more classes of parties. For 
instance, there were widespread claims by employers that the NLRB was 
biased in favor of unions during the 1940s."" Fifty years later it is still 
impossible to verify or refute those claims. Of course, the problem with 
perceptions of bias is that they need not be based on the reality of bias. Even 
baseless perceptions of bias can cause citizen discontent and resulting lack of 
public acceptance of an adjudicatory system. Thus, for instance. Congress 
might have been justified in amending the National Labor Relations Act in 
1947 to increase the degree of separation of functions in the NLRB even if 
Congress were not convinced that the agency's adjudicatory decisions actually 
reflected anti-employer bias. 

3. Enhanced Status Helps Recruitment and Control of 
Hearings 

To some uncertain extent, a prospective agency adjudicator's expectation 
that the position will be independent of the agency helps to attract applicants 



""5ftf discussion in Chapter II. 



The Federal Administrative Judiciary 98 1 



for agency adjudicator positions. The studies discussed in Chapter IV provide 
some empirical support for this relationship between independence and 
recruitment. There are at least four reasons for this beneficial effect on 
recruiting. First, the prospective adjudicators can have greater confidence that 
they will not be subjected to pressure to resolve disputes in a manner they 
consider unjust, inappropriate, or unlawful. Second, they will have greater 
confidence that their role is important and that they can have a meaningful, 
beneficial effect on our system of justice. Third, independence from the 
agency implies a high level of job security. It is extremely difficult, for 
instance, to terminate an AU. Fourth, they value absence of supervision and 
control for the same reason most people do; they place a high value on 
personal and professional autonomy. 

To some uncertain extent, independent adjudicators also may enjoy a 
comparative advantage in their ability to control hearings. This advantage is 
most clear in adjudications in which the agency itself is a party. When the 
adjudicator is independent of the agency, there is less room for ambiguity 
about who is in charge of the hearing—the hearing officer or the staff counsel. 
Independence may also be an advantage when the agency is not a party, but the 
relationship between independence and ability to control the hearing is less 
direct and more subtle in this context. Control by the adjudicator is facilitated 
by the parties' respect for the adjudicator. That respect, in turn, depends to 
some extent on the parties' perception that the adjudicator is unbiased. The 
complicated relationship between independence and perceptions of bias was 
discussed in Chapter VI (A)(1) and (2). 



B. Safeguards of Independence 



1. Statutory Safeguards Applicable to ALJs 

The APA provides significant protection from potential bias by creating 
and defining the position of AU. All formal adjudications must be presided 
over by (1) the agency, (2) one or more members of the body which comprises 
the agency, or, (3) one or more ALJs.'"^ As a practical matter, the presiding 
officer at a formal adjudication almost always is an AU, simply because most 
agencies have far too many cases to designate either the agency (usually a 
cabinet officer, commissioner or collegial body) or a member of the agency 
(usually one of several commissioners in a collegial body) to preside over any 
adjudication. In addition, some agencies voluntarily use AUs to preside over 



'^5 U.S.C. §556(b). 



982 Verkuil, Gifford, Kcx:h, Pierce, and Lubbers 



some classes of adjudications that do not fall within the APA definition of 
formal adjudication. The AU presides over the trial stage of an adjudication. 
The AU regulates the course of the proceeding, including scheduling, 
resolution of procedural and evidentiary disputes, and issuance of an initial 
decision. 

Administrative law judges are almost entirely independent of the agencies 
at which they preside. Their pay is prescribed by statute and by the Office of 
Personnel Management, independent of any evaluations or recommendations 
made by the agency. '''^ An agency can take no action against an AU without 
convincing a separate agency (the MSPB) that good cause exists for doing so. 
The MSPB must use a formal adjudicatory proceeding to resolve the good 
cause issue."'* AUs are assigned to cases by rotation, and an agency can omit 
the initial decision of the AU assigned to a case only if the AU becomes 
unavailable or the agency finds "that due and timely execution of its functions 
imperatively and unavoidably so requires."'"^ Finally, an AU cannot be 
subject to supervision or direction by any agency employee with investigative 
or prosecutorial fimctions and cannot consult any person on any fact at issue in 
a proceeding without providing all parties notice and opportunity to 
participate.'"^ 

In short, AUs are very nearly as independent of federal agencies as federal 
trial judges are of the executive branch. This high degree of independence of 
AUs from agencies is designed to protect the rights of individuals affected by 
agency adjudicatory decisions from any potential source of bias. 

The APA requires use of an AU only in formal adjudications, that is, 
when adjudication is "required by statute to be determined on the record after 
opportunity for agency hearing."'"^ Moreover, §554 exempts several 
important categories of formal adjudication from the statutory requirement to 
use an AU (e.g., selection or tenure of an employee except an AU and 
proceedings involving the conduct of military and foreign affairs ftmctions). 
In all adjudications that are not required to be "on the record" and in all 
adjudications made exempt by §554(a), an agency has the discretion to use a 
non-AU adjudicator. The title assigned these adjudicators varies by agency 
(e.g., administrative judge, presiding officer, hearing examiner). 



'"^SU.S.C. §5372. 

""•5 U.S.C. §3105. 

'"^5 U.S.C. §§557(b)(2), 557(d), 3105, 

"'*5 U.S.C. §554(d). 

'"^5 U.S.C. §554(a). 



The Federal Administrative Judiciary 983 



2. Safeguards Applicable to AJs 

Judge John Frye's 1991 report to the Conference contains a wealth of 
information about the important class of agency employees we have referred to 
as non-ALJ adjudicators or administrative judges (AJs).'"* Judge Frye 
determined that non-AUs preside in 129 different types of adjudications.'"' 
Of those, 83 types of adjudications are now active. In total, AJs adjudicate 
approximately 343,200 disputes per year."^ The nature of the disputes varies 
widely."^' They seem to cover a range of case types as broad as the range of 
case types adjudicated by AUs. 

The statutory provisions that assure AU independence do not apply to AJs. 
It does not necessarily follow, however, that AJs depend on the agencies at 
which they adjudicate. Nor does it follow that those agencies exercise 
inappropriate influence over non-AU decisionmaking by making use of 
whatever dependency relationship might exist. Judge Frye discovered that AJs 
enjoy a high degree of independence from the agencies for which they 
adjudicate in a large proportion of cases. Our study of the attitudes of AJs, 
described in Chapter IV, shows that most AJs do not consider lack of 
independence a significant problem. 

Most AJs have a high degree of independence, attributable to two 
phenomena. First, many agencies voluntarily refrain from imposing on AJs 
any form of performance appraisal or informal review of decisionmaking. 
Where non-AU adjudicators have no duties other than adjudication, agencies 
refrain from engaging in performance appraisal of non-AU adjudicators in 
53% of case types and in 79% of all cases. "^ (Understandably, most 
agencies engage in performance appraisal of employees who have 
responsibilities in addition to their role as part-time adjudicators.) Similarly, 
agencies refrain from using informal review or informal quality control 
measures in 45% of case types and 62% of all cases. "^ Second, in other 
large classes of cases, AJs are employed by an institution that behaves 
independently from the agency for which the adjudicatory function is being 
performed (e.g., the Board of Veterans Appeals employs the adjudicatory 
officers that decide benefits disputes for the Department of Veterans Affairs). 
This institutional structure accounts for 30% of case types and 23% of all 



"'*Frye Report, 
'"'/(/.at 3. 
"20/J. at4. 
"2'W. at 4-5. 
"22^. at 18. 
"23W. at 167. 



984 Verkuil, Gifford, Koch, Pierce, and Lubbers 



cases. ''^ For these case types, the safeguards of independence are statutory, 
since Congress created the institutional structure by statute. 

Between them, these two means of assuring the independence of AJs apply 
to 65% of case types and 91 % of all cases. ^'^ These statistics suggest that, to 
the extent independence of federal adjudicatory officers is perceived to be a 
desirable goal, lack of independence is a potential problem in only two 
circumstances. First, 35% of case types and 9% of total cases are adjudicated 
by AJs who are subject to some form of informal control by the agency for 
which they preside. Second, 70% of case types and 73% of all cases are 
adjudicated by AJs whose independence is assured only by voluntary agency 
practices and not by statute. These two classes of cases present different 
concerns. 

For the adjudications in the first category, the concern is the potential for 
bias and/or the potential for perception of bias. It is hard to know the extent 
to which these related concerns are justified. In at least two situations, an 
agency's use of informal controls over agency adjudicators should not cause 
much concern. The first is where there is little reason for concern that the 
agency itself is biased. Most benefit cases and most adjudications in which the 
agency itself is not a party would seem to fit in this category. The second is 
where the agency uses its informal control mechanisms only to advance goals 
independent of the substantive outcome of a dispute (e.g., to improve 
adjudicators' efficiency or their proficiency in writing opinions). Without 
conducting an intensive investigation of an agency's methods of evaluating 
adjudicators and/or its methods of informal review of adjudicators' decisions, 
it is impossible to determine whether an agency is using performance appraisal 
and/or informal review mechanisms only to further such laudable goals, or 
whether instead its methods of appraisal and review tend to create some bias in 
favor of the agency's interests. Most AJs do not perceive a problem of this 
type. • '26 

In the second class of cases—where the agency does not engage in 
performance appraisal or informal review but where it is statutorily permitted 
to do so—the concerns are somewhat different. The only present concern is 
that affected members of the public may perceive bias attributable to lack of 
adjudicator independence even though that perception has no factual bias. This 
concern is easy to allay, however. The agency can issue a rule or policy 
statement that announces to the public its policy of not subjecting adjudicatory 
decisionmakers to performance appraisal and not subjecting their decisions to 
informal review. The second concern is the potential that the agency might 



'>2^W. at 165. 
^^^Id. at 168. 
"^5tftf results of survey described in Chapter IV. 



The Federal Administrative Judiciary 985 



create actual adjudicatory bias in the future by beginning to subject 
adjudicators and adjudicators' decisions to methods of performance appraisal 
or informal review that interfere with adjudicators' independence. 

The only certain and permanent means of avoiding all potential for bias by 
agency adjudicatory employees is through statutory enactment. If it believes 
that the problem of bias or perceived bias is sufficiently serious, Congress can 
eliminate the problem in any of four ways: (1) amend the agency's organic 
act by requiring it to use APA adjudication; (2) amend the organic act by 
requiring the agency to use AU adjudicators; (3) amend the act by prohibiting 
the agency from using performance appraisal or informal review; or, (4) 
amend the act by creating an institution independent of the agency to employ 
the adjudicatory personnel (e.g., the Board of Veterans Appeals). These 
mechanisms are functional equivalents in terms of their effects on the 
independence of adjudicatory officers. They may have significantly different 
effects in other respects, however, because AUs' salaries often exceed the 
salaries of non-AU adjudicatory officers. 

This statutory solution could create other problems, however. (See the 
discussion of potential adverse consequences of independence in Chapter VI 
(C).) Congress might want to adopt such a solution only in situations where 
the potential for actual or perceived bias is particularly strong (e.g., 
enforcement or sanction cases). In other contexts, the agency can reduce 
concerns about potential bias by making public its methods of implementing 
performance appraisal of adjudicatory employees and/or its methods of 
implementing any system of informal review of the decisions of such 
employees. If the published methods or criteria suggest strong potential to 
introduce bias in adjudicatory decisionmaking, the affected members of the 
public can complain to the agency and, if necessary, to Congress. If the 
published methods or criteria do not raise such concerns, but the agency 
deviates from its published methods or criteria, the agency's adjudicatory 
employees can complain to the agency or, if necessary, to Congress. 



C. Potential Adverse Consequences of Independence 

Conferring on adjudicatory officers complete independence from the 
agency for which they adjudicate has many consequences, including some 
undesirable ones. We will discuss these in three categories: loss of control 
over policy; potential for interdecisional inconsistency; and loss of control 
over quality and productivity. First, however, it is useful to illustrate the 
potential adverse consequences of adjudicatory independence by reference to 
the context in which we have traditionally placed the highest social value on 
adjudicatory independence—adjudication of criminal cases in federal courts. 



986 Verkuil, Gifford, Koch, Pierce, and Lubbers 



In 1984 Congress created the United States Sentencing Commission."^ 
The seven-member Commission is required to establish sentencing guidelines 
that are binding on federal judges. Congress created the Commission and 
assigned it the statutory responsibility to correct a problem that was the result 
of the high degree of independence of federal judges. Congress concluded that 
there was an unacceptably wide variation in the length of sentences given by 
different judges to individuals convicted of federal crimes. Expressed in 
statistical terms, the Commission's job is to reduce the unexplained variance in 
the length of sentences imposed by the many independent adjudicatory officers 
who perform this function. The Supreme Court upheld the validity of this 
means of responding to the problem of interdecisional inconsistency in 
criminal sentencing in Mistretta v. U.SJ^^ 

The controversy concerning the Sentencing Commission also illustrates the 
difficulty of characterizing the effect of an agency's attempt to exercise some 
degree of control over otherwise independent adjudicatory officers. Prior to 
the Supreme Court's decision in Mistretta, numerous lower courts had held 
that the Sentencing Commission and its binding guidelines violated due process 
by interfering with the independence of federal judges and by introducing 
impermissible bias in the performance of their adjudicatory responsibilities. 
The Supreme Court did not directly address the due process issue in Mistretta, 
but it characterized the Commission's responsibilities in a manner totally 
inconsistent with the claim that the Commission was interfering improperly in 
the role of the independent federal judiciary. The Supreme Court characterized 
the Commission's function as "to exercise judgment on matters of policy" in 
order to limit the discretion of judges in individual cases. "^ After Mistretta, 
courts relied on this characterization as the basis for opinions holding that the 
Sentencing Commission's Guidelines do not violate due process even though 
they obviously limit the degree of decisional independence previously enjoyed 
by federal judges."*' 

1. Scope of Control Over Policy 

The historical evolution of administrative law, discussed in detail in 
Chapter II, was based largely on simultaneous pursuit of two goals—unbiased 
resolution of factual disputes by independent adjudicatory officers and agency 
control of policy decisions. The drafters of the APA attempted to further the 



"275^tf 28 U.S.C. §§991-98 (Supp. 1989). 
"28109 s.Cl. 647(1989). 
"29/^. at 658. 

"30E.g., U.S. V. Seluk, 873 F.2d 15 (1st Cir. 1989); U.S. v. Bolding, 876 F.2d 21 (4th Cir. 
1989); U.S. V. Victoria, 877 F.2d 338 (5th Cir. 1989). 



The Federal Administrative Judiciary 987 



first goal by creating independent hearing examiners (now AUs) who are 
insulated from potential agency control by the statutory safeguards discussed in 
Chapter VI (B). They attempted to further the second goal by subjecting the 
initial decisions of these independent factfinders to plenary review by the 
agency. In the language of APA §557(b), "On appeal from or review of the 
initial decision, the agency has all the powers it would have in making the 
initial decision except as it may limit the issues on notice or by rule. "^^ The 
theory was that, by exercising its discretionary power to review, and to 
change, any decision of an ALJ with which it disagreed, the agency could 
maintain control over all policy components of adjudicatory decisions 
notwithstanding the initial role of the independent adjudicatory officer. 

The need for agency control over policy decisions has its roots in at least 
three sources. First, the agency has a comparative advantage in expertise vis- 
a-vis the adjudicatory officers. This is not to say that agency adjudicatory 
officers lack expertise. Some have subject matter expertise before they take 
the position; all develop expertise after several years of adjudicating disputes 
involving a particular subject matter. Rather, the assertion is relative; the 
agency has greater subject matter expertise than the adjudicatory officer. 

Expertise was the original justification for creating specialized agencies and 
for assigning them, rather than generalist courts, responsibility for 
adjudicating disputes within their expertise. An agency's comparative 
advantage with respect to expertise is a function of the concept of the 
institutional decision. As a formal matter, agency decisions resolving 
adjudicatory disputes are made either by the agency head or by some 
individual or subinstitution to whom the agency head has delegated this 
responsibility. In either event, the actual decisionmaking process usually 
involves input from many individuals, typically including specialists in 
disciplines relevant to the subject matter of the dispute. The Federal Energy 
Regulatory Commission can be used to illustrate the point. When FERC's five 
commissioners consider the issues in a pipeline certificate case, they rely 
heavily on input from the agency's staff of engineers, environmental scientists, 
economists, and lawyers. The resulting decision by the agency is not the 
product of one individual but of many. 

By its nature, the institutional decision can reach a level higher in quality 
than that attainable by the ablest of adjudicatory officers who are cut off from 
sources of expert advice. The administrative process builds on the principle 
used by a large medical clinic, which often can provide medical services 
superior to those any individual physician can provide, by bringing many 
kinds of specialists into an organization structured to provide a maximum of 
effectiveness to the aptitudes of each individual. The institutional mind has 

Emphasis added. 



988 Verkuil, Gifford, Koch, Pierce, and Lubbers 



insights that are as profound as those of any individual and may be much more 
comprehensive, for the appropriate specialists collaborate, checking the 
judgment of each other, each drawing upon one's own peculiar knowledge and 
skills. 

The contrast with typical adjudicatory officers is instructive. The officers' 
decision is almost entirely personal, for they hear the evidence and the 
argument and make the decision. They may have law clerks, who may 
sometimes play a significant role, but the decision is almost always entirely 
theirs. An agency head may often defer to what is deemed to be the superior 
judgment of a staff specialist, but such deference of an adjudicatory officer to 
the judgment of a law clerk is relatively rare. Law clerks are typically 
neophytes, not specialists. But an agency head may often be the intellectual 
inferior of an agency specialist with respect to a particular subject matter. The 
agency head exercises judgment in the process of deciding how to incorporate 
the specialized expertise of a multi-disciplinary staff in the agency's resolution 
of a case. 

The role of an agency's staff is a vital part of the administrative process. It 
is a source of special strength of the administrative process. The strength 
springs from the superiority of group work— from internal checks and balances, 
from cooperation among specialists in various disciplines, from assignment of 
relatively menial tasks to low paid personnel so as to utilize more economically 
the energies of high paid personnel, and from the capacity of the system to 
handle huge volumes of business and at the same time maintain a reasonable 
degree of uniformity of policy determinations. "^^ 

Second, agencies must be able to exercise plenary power over 
policy decisions because of their comparative advantage with 
respect to political accountability. The Supreme Court 
established and explained the constitutional and political 
framework for policymaking in the administrative state in its 
landmark opinion in Chevron v. NRDC.^^^^ The Court 
announced a new approach to judicial review of agency 
constructions of the statutes Congress has instructed agencies 
to implement, which instructs reviewing courts to ascertain 
whether "Congress has directly spoken to the precise 
question at issue. ""^ If so, that is the end of the inquiry; if 
not the court is to defer to the agency's constuction if it is a 
permissible one. The Court's reasoning in support of this 



"■'^For an excellent and comprehensive assessment of the many advantages of the 
institutional decisionmaking process, see J. Mashaw, Bureaucratic Justice (1983). 

'•^^467 U.S. 837(1984). 



The Federal Administrative Judiciary 989 



broad approval of politically-influenced policymaking 
demonstrates that Chevron is part of an effort to reconcile the 
administrative state with the principles of democracy: 

Judges... are not part of either political branch of the 
Government.... In contrast, an agency to which Congress has 
delegated policymaking responsibilities may, within the 
limits of that delegation, properly rely upon the incumbent 
administration's view of wise policy to inform its judgments. 
While agencies are not directly accountable to the people, the 
Chief Executive is, and it is entirely appropriate for this 
political branch of the Government to make such policy 
choices—resolving the competing interests which Congress 
itself either inadvertently did not resolve, or intentionally left 
to be resolved by the agency charged with the administration 
of the statute in light of everyday realities. ''^^ 

Behind Chevron, then, lies the recognition that where policy is to be made 
either by the politically insulated members of the judiciary or by the politically 
accountable members of an agency, it best comports with democratic 
government that the accountable agency officials form the policy. 
Governmental policy should have its origin in the politically accountable 
branches of government. To the extent that Congress is unable to provide an 
effective link between the people and the policies chosen by agencies by 
enacting statutes that resolve all policy disputes, the President is responsible 
for performing this function. In either case, agency policymaking should 
reflect bias—the bias of Congress or, in the absence of legislative expression of 
that bias, the bias of the President. 

The Court's reference to judges in Chevron was to federal district and 
circuit judges. The Chevron analysis applies equally to independent 
adjudicatory officers in agencies, however. Indeed, independence here 
correlates with absence of political accountability. Thus, the more 
"independent" the agency's adjudicatory officers, the greater the comparative 
advantage of the agency as a source of policy decisions. 

Third, agency control of policymaking is essential to the goal of 
establishing consistent and coherent policies. This reason obviously overlaps 
with the goal of maintaining interdecisional consistency, which is discussed in 
the next section. It is somewhat broader, however, encompassing the need for 
coherence as well. 

"^W. at p. 842. 
'•^Vd. at 865-66. 



990 Verkuil, Gifford, Koch, Pierce, and Lubbers 



The linkage between coherent policies and agency control of policymaking 
is best understood by first defining coherence in this context. Any agency- 
administered system of regulation or benefit distribution must be bounded by 
scores, or perhaps even hundreds, of policy decisions. Almost invariably, 
there is more than one combination of policies that is consistent with the 
language of the agency's statute and with pursuit of the agency's legitimate 
goals. There are not unlimited combinations of such policies, however, and 
many policy decisions are functionally related. To illustrate this phenomenon 
in a simplified hypothetical context, consider an agency that must address only 
two policy issues. On one dimension, it can choose between A and B. On the 
other dimension, it can choose between X and Y. The functional relationship 
between the two choices may be such that only A and X or B and Y are likely 
to further the agency's legitimate goals. Either A and Y or B and X would 
produce bad results. In this situation, A and X, and B and Y, are coherent 
policies while A and Y, and B and X are incoherent policies."^ 

Agency control of policymaking is far more likely to yield coherent 
policies for the simple reason that there is only one agency. The agency is 
highly imlikely to choose A and Y or B and X. If independent agency 
adjudicatory officers have the power to make policy, incoherence is a probable 
result, simply because most agencies have multiple adjudicatory officers. 
Administrative Judge Jones might choose policy A in one case, while 
Administrative Judge Smith chooses policy Y in another case. Neither judge is 
wrong, but the result is an incoherent combination of policies. 

Of course, it is possible in theory to accept the desirability of agency 
control over policymaking without concluding that independent adjudicatory 
officers impair an agency's ability to assert total control over policymaking. 
In theory, the APA model of formal adjudication allows agencies to fulfill this 
goal. As discussed in detail in Chapters VI (D) and VII, however, the means 
available to agencies to control the policy components of adjudicatory 
decisions are not always adequate to the task. 

The APA model of formal adjudication is premised on the existence of a 
clear dichotomy. Independent AUs resolve factual disputes, while politically 
accountable agencies make policy decisions. The line between factual disputes 
and policy disputes is not so easy to draw in practice, however. The frequent 
difficulty of the distinction can be illustrated by reference to Professor Davis' 
famous distinction between adjudicative facts and legislative facts. "^^ 



"^or examples of this ubiquitous phenomenon, see Moglen & Pierce, Sunstein's New 
Canons: Choosing the Fictions of Statutory Interpretation, 57 U. Chi. L. Rev. 1203, 1239-43 
(1990). 

""5*tf 2 K. Davis, ADMiNiyrRATivE Law Treatise §§10:5, 12:6 (Id ed. 1978). 



The Federal Administrative Judiciary 99 1 



Adjudicative facts answer the questions of who did what, where, when, 
how, why, and with what motive or intent. Typically, they are specific facts 
related to the conduct and characteristics of the parties to a dispute. 
Legislative facts do not usually describe the parties or their conduct; rather, 
they are the general facts that help any tribunal—legislature, agency, AU, or 
court—decide questions of policy. 

Most agency adjudications involve contested issues of legislative fact, as 
well as contested issues of adjudicative fact. Most decisions of agencies and of 
agency adjudicatory officers resolve both types of "factual" disputes. A 
regulatory agency's decision whether to allow a firm to charge a particular 
price often depends as much or more on the decisionmaker's beliefs concerning 
the competitive structure of the market as on the decisionmaker's beliefs 
concerning the particular firm's costs. Similarly, a benefit agency's decision 
whether an applicant is experiencing disabling pain often depends as much on 
the decisionmaker's beliefs concerning the etiology, symptomology, and 
functional effects of pain as on its beliefs concerning the particular applicant's 
symptoms of pain. 

In each of these cases, and most others, the adjudicatory decisionmaker is 
making decisions based partly on resolution of contested issues of adjudicative 
fact and partly on resolution of issues of legislative fact. Yet, the latter 
process is indistinguishable from policymaking. Indeed, it is the essence of 
policymaking. To the extent that agencies are unable to control this policy 
component of adjudicatory decisionmaking through use of the mechanisms 
described in Chapters VI(D) and VII, an agency's use of independent 
adjudicatory officers limits the agency's ability to control policymaking and 
places some policymaking power in the hands of its decentralized and 
politically unaccountable adjudicatory officers. 

2. Potential Interdecisional Inconsistency 

The relationship between use of independent adjudicatory officers and the 
potential for interdecisional inconsistency is simple and direct. Even the use 
of two independent adjudicatory officers to resolve disputes of the same type 
creates the risk (perhaps the inevitability) that the two officers will reach 
different results in rationally indistinguishable cases because they see the cases 
through different prisms. The potential for interdecisional inconsistency 
increases with increases in the number of independent adjudicatory officers, 
increases in the difficulty of the disputes they resolve, and increases in the 
degree of subjective or normative judgment required to resolve the disputes. 
The potential for significant interdecisional inconsistency is a major concern 
because it violates a cardinal principle of our system of justice— like cases 
should be resolved in like manner. It also causes a host of collateral problems 



992 Verkuil, Gifford, Koch, Pierce, and Lubbers 



by increasing the uncertainty, unpredictability and cost of any system of 
dispute resolution. 

The potential for interdecisional inconsistency can be illustrated by 
reference to a well-documented example. An interdisciplinary team of six 
researchers conducted a comprehensive empirical study of AU adjudication of 
SSA disability cases. ''^ Their conclusions were disconcerting. First, "[t]he 
inconsistency of the disability decision process is patent. ""^^ Second, "the 
outcome of cases depends more on who decides the case than on what the facts 
are.""*' Third, the benefit grant rates of individual AUs correlate strongly 
with their personal philosophies. '•'*' As discussed m Chapter VI (D)(2), SSA 
has experienced considerable frustration and little success in its attempts to 
reduce the high level of interdecisional inconsistency produced by more than 
850 independent ALJs. 

3. Extent of Control Over Productivity and Quality 

One of the primary functions of the manager of any enterprise is to enhance 
the productivity and quality of each employee. To use a familiar but prosaic 
example, a secretary who types 40 words and 15 errors per minute would not 
meet anyone's standards of acceptable productivity and quality. Any 
responsible manager would attempt to obtain improvements in the employee's 
performance through use of some combination of carrots and sticks (e.g., a 
contingent promise of a raise, a contingent threat of demotion, a contingent 
suggestion of transfer to a more or less desirable position). If all else fails, the 
manager fires him. 

Agencies responsible for managing systems of adjudication in which the 
adjudicatory officers are independent of the agency have effective access to 
none of the traditional tools managers use to induce improvements in 
productivity and quality. A paraphrase of a conversation one of the authors 
had with an agency's Chief AU illustrates the problem: "I wish I could do 
something about AUs X, Y, and Z. Most of our AUs are smart, 
hardworking and productive, but X likes golf a lot more than opinion writing, 
Y has lost the ability to analyze issues and evidence if he ever had it, and Z is 
such a compulsive perfectionist I can never get an opinion out of him. " 

Again, the problem has been documented empirically in at least one 
context. In response to intense pressure from beneficiaries, Congress, and the 



''^J. Mashaw, G. Goetz, F. Goodman, W. Schwartz, P. Verkuil & M. Carrow, Social 
Security Hearings AND Appeals (1978). 
'•^Vatxxi. 

1140;^ 

"'•'W. at 21-24. 



The Federal Administrative Judiciary 993 



courts, SSA conducted a study of the perceived problem of delay in its 
disability decisionmaking process. When the SSA examined the causes of 
delay, variation in the work habits and productivity of its then 700 ALJs 
emerged as a clear culprit. The average AU decided 324 cases per year, but 
the productivity variance among AUs was enormous. Individual AUs 
decided as many as 1,440 and as few as 120. ''^^ Since cases are assigned to 
AUs randomly, differences in the mix of assigned cases cannot explain more 
than a tiny fraction of this variation in output. As described in Chapter 
VI(D)(1), SSA's efforts to improve the productivity of its AUs has produced 
more frustration than beneficial results. 



D. Agency Power to Constrain ALJ and Non-ALJ Discretion 

Any agency can constrain the discretion of its adjudicatory officers through 
use of some combination of three formal devices: (1) issuance of a valid 
legislative rule that resolves generically one or more recurring issues that 
otherwise would be subject to case-by-case resolution; (2) implementation of a 
system of binding precedents; and (3) agency review of the initial decisions of 
adjudicatory officers. The availability of these methods of control does not 
depend on whether the officer is an AU or a non-AU or on the degree of 
independence from the agency the officer enjoys. We discuss the uses and 
limits of each of these control mechanisms in Chapter VI(D)(2)(a)(b) and (c). 
The legal effect of a fourth device—issuance of interpretative rules—is less 
clear. We discuss diat device in Chapter VI(D)(2)(d). 

The degree of independence of the adjudicatory officer does bear some 
relationship to the efficacy of interpretative rules and of less formal methods of 
attempting to constrain adjudicatory officers' discretion. If an agency uses 
informal means to communicate to its adjudicatory officers its strong desire to 
implement a particular policy, to increase interdecisional consistency in some 
respect, or to have all adjudicatory officers strive for a specified minimum 
level of productivity or quality, the communication is likely to have greater 
effect if the officers are to some extent dependent on the agency. The agency's 
statutory inability to engage in performance appraisal, or to affect an officer's 
level of compensation, work assignments, etc., or the agency's voluntary 
decision to refrain from performing these normal managerial functions. 



"''Vtf. at 120-21. By fiscal year 1991, the average SSA AU was deciding 408 cases per 
year, Office of Hearings and Appeals, Key Workload Indicator, Second Quarter Fiscal Year 
1991, p.l (covers Quarters 1-2 of FY 1991). There were still approximately 700 AUs. The 
number has since increased to 866. 



994 Verkuil, Gifford, Koch, Pierce, and Lubbers 



reduces the likely efficacy of any such informal efforts to shape the conduct of 
adjudicatory officers. 

1. Productivity Enhancement Measures 

SSA's frustrating attempt to increase the productivity of its few low 
productivity ALJs illustrates the relationship between the independence of 
adjudicatory officers and the efficacy of agency attempts to constrain the 
discretion of adjudicatory officers in this respect. Once SSA detected the large 
differential in the productivity of its 700 AUs,*'^ it began looking for 
differences in work habits that could explain the variance. It identified at least 
one explanatory factor. Some AUs write their own opinions, while others 
delegate this task to staff attorneys; ALJs who delegate opinion writing decide 
up to twice as many cases as ALJs who refuse to delegate the task.** 

The SSA addressed this source of delay in two ways: it strongly urged 
ALJs to delegate opinion writing to staff attorneys, and it informed ALJs that 
it had established a productivity goal of 338 decisions per ALJ per year.^ 
The SSA expressed particular concern about ALJs who decide fewer than 240 
cases per year. It communicated with individual ALJs in this category, urging 
them to increase their productivity and suggesting methods of doing so. It also 
mandated special training programs for those who remained in the low 
productivity category, and, when all else failed, it notified consistently low 
productivity judges that if productivity did not improve, SSA would initiate 
"for cause" removal proceedings before the Merit Systems Protection Board. 

AUs challenged the SSA's productivity enhancement initiatives as an 
infringement on the decisional independence guaranteed them by the APA. 
The Second Circuit rejected that challenge in its opinion in Nash v. Bowen,^ 
issued a decade after the SSA first attempted to control ALJ productivity. The 
court distinguished between "unreasonable quotas" and "reasonable goals," 
finding SSA's "goal" of 338 cases per year "reasonable."^' 

The court did not explain the notoriously difficult functional distinction 
between quotas and goals, nor did it suggest a method of distinguishing 
between "reasonable" and "unreasonable" quotas or goals. It also did not 
discuss the SSA's admonition to AUs to delegate opinion writing to staff 



^5^-^ Chapter VI(C)(3). 

^J. Mashaw, et al, supra, n. 1 135 at 90. 

^Sge Nash v. Bowen, 869 F.2d 675. 680 (2d Cir. 1989). But see SAU v Anyel, AU Docket 
NO. CB7521910009T1 (January 16, 1992), (SSA may not remove SSA AU based on reversal 
rale of 87.6% despite showing the average reversal rate for all SSA ALJs was 40%). 

''^Id. at 680-81. 



The Federal Administrative Judiciary 995 



lawyers. Until courts address these issues, the propriety and efficacy of any 
agency's efforts to enhance the productivity of its AUs remains in grave 
doubt, notwithstanding the Second Circuit's holding for the SSA and its 
acknowledgement that the agency was trying to further "[s]imple fairness to 
claimants awaiting benefits."^ 

The MSPB decision in SSA v. Goodman,^ illustrates the problems that 
have arisen from the SSA's attempts to coerce AUs to be more productive. 
Goodman was identified as a low productivity AU in 1980. The SSA told 
him to increase his productivity, provided counseling to assist him in doing so, 
admonished him to delegate opinion writing to staff attorneys, and placed him 
on notice that the SSA would initiate a proceeding to remove him for cause if 
he did not improve. For the next 2-1/2 years, Goodman continued to perform 
as before: he declined to delegate opinion writing, decided about half as many 
cases as the average AU (60 percent of SSA's goal), and remained the least 
productive AU in his regional office.''^ At that point, SSA made good on its 
threat—but the threat turned out to be hollow. The MSPB held that Goodman's 
low productivity was an inadequate basis for removal, noting its unwillingness 
to infer that the national average was an appropriate measure of "reasonable" 
AU productivity, or that performance at 60 percent of that level was 
unacceptable productivity.^^ 

If the MSPB decision in Goodman is a functional application of the Second 
Circuit's distinction between reasonable goals and unreasonable quotas, no 
agency has a chance of improving the productivity of its AUs by establishing 
goals. If evidence that one is only half as productive as one's peers is 
insufficient to support an inference of unacceptably low productivity, it is hard 
to imagine what evidence would suffice. The MSPB speculated that 
Goodman's case mix might differ from the average AU docket.^** This 
statement is dubious, to say the least. With the large number of cases and 
random assignment to AUs, the probability that Goodman's docket differs 
significantly from the average is remote. At a minimum, the SSA's statistical 
evidence should have been sufficient to shift the burden to Goodman to present 
evidence that his docket was aberrational. 

The MSPB suggested in a footnote alternate means by which the SSA might 
enhance AU productivity.^ If the SSA directed AUs to use staff opinion 
writers or to take other reasonable steps to improve productivity, the MSPB 



'^Id. at 681. 

""IPM.S.P.R. 321 (1984), 58 Ad. L. 2d (Pike and Fischer) 780 (1984). 

'VJ. at 782-83. 

''^Id. at 789. 

''^Id. at 789. 

■"/J. at 788 n. 11. 



996 Verkuil, Gifford, Koch, Pierce, and Lubbers 



explained, it might be willing to remove for insubordination any AU who 
refused to follow the directive. This, however, would be a crude, second-best 
method of enhancing productivity. It would be more intrusive and less 
effective than presumptive productivity goals. Moreover, it is not clear that 
courts would find such a directive permissible. Judges are likely to fear that 
legitimating an executive branch order that so directly mandates the work 
habits of AUs would strike too close to home. It seems far more sensible for 
an agency to establish productivity goals and allow AUs flexibility in deciding 
how to meet those goals than to become involved in micromanagement of each 
AU's methods of operation. 

2. Efforts to Assert Control Over Policy Components 
of Adjudicatory Decisions and to Enhance Interdecisional 
Consistency 

Agencies can attempt to exercise control over the policy components of 
adjudicatory decisions made by agency adjudicatory officers through use of at 
least five vehicles: legislative rules, formal review, a system of precedents, 
interpretative rules, and informal pressure. The five are listed in order of their 
relative degree of formality and efficacy, with the most formal and effective 
control mechanism first. As the degree of formality of the control mechanism 
decreases, the efficacy of the measure becomes increasingly dependent on the 
degree of dependence of the agency's adjudicatory officers. To describe the 
same relationship in a different way, formal control mechanisms have the same 
powerful constraining effect on independent adjudicatory officers as they have 
on officers who are to some extent dependent on the agency. Less formal 
mechanisms are likely to have more persuasive effect on dependent officers 
than on independent officers. Each of these control mechanisms also is subject 
to limitations inherent in the nature of the mechanism, the procedures required 
to use the mechanism, and the characteristics of the adjudicatory environment 
to which the mechanism is applied. 

Policy control and interdecisional consistency are closely related from a 
functional perspective. That is to say, any agency statement of policy that is 
applied in all adjudicatory cases that raise the issues resolved by the policy 
statement enhances interdecisional consistency at the same time it controls the 
policy component of a decision. Thus, for instance, a binding SSA rule that 
specifies the circumstances in which a heart murmur is disabling 
simultaneously allows the agency to control policy in this area and assures that 
all individuals with heart murmurs are judged by the same criteria. It should 



The Federal Administrative Judiciary 997 



be noted that almost AUs reject the notion that their role is to make agency 
policy to any great extent. '^^ 

a. By Legislative Rule 

Virtually all scholars and judges who have considered the question have 
concluded that legislative rulemaking is the preferred means by which an 
agency can exercise control over the policy components of adjudicatory 
decisions. Most agencies that have the power to adjudicate also have the 
power to issue rules whose effects are indistinguishable from statutes. APA 
section 553 '•" requires an agency to use a three-step process to issue a 
legislative rule: (1) public notice of the proposed rule; (2) receipt and 
consideration of comments on the proposal; and, (3) issuance of the rule 
incorporating a concise general statement of its basis and purpose. 

A valid legislative rule is binding on citizens, agency adjudicatory officers, 
and on the agency itself. A legislative rule can have the effect of eliminating 
what otherwise would be a party's right to a hearing to resolve contested issues 
of fact or of reducing the scope of a class of adjudicatory proceedings by 
eliminating the need for the agency or the adjudicatory officer to resolve one 
or more factual issues. In other circumstances, a rule can transform a 
complicated subjective decisionmaking process into a more manageable process 
of applying one or more objective criteria. Many agencies have adopted rules 
to serve these purposes."^ As the Supreme Court recognized in Weinberger v. 
Hynson, Westcott & Dunning, an agency frequently "could not fulfill its 
statutory mandate" without issuing legislative rules that have the effect of 
eliminating the need to conduct thousands of hearings governed only by broad 
subjective decisionmaking standards. '•^^ 



"^*rhe AU survey (question #9(i), see appendix) reveals that only 1% of respondents 
indicated that they conceive of their role as making policy to a "great extent" and 8% to "some 
extent." However, 24% of respondents said they at least occasionally make suggestions to the 
agency for policy changes (question 10(k)). 

""5 U.S.C. §553. 

^^^See, e.g.. Heckler v. Campbell, 461 U.S. 458 (1983) (agency rule prescribing "grid" for 
determining availability of jobs in the U.S. economy eliminates the need to litigate this issue in 
many social security disability cases); Weinberger v. Hynson, Westcott &. Dunning, 412 U.S. 
609 (1973) (agency rule prescribing minimum acceptable evidence to support fmding that drug is 
effective eliminates the need to conduct hearings on this issue when evidence tendered fails to 
meet an objective criterion stated in the rule); U.S. v. Storer Broadcasting, 351 U.S. 192 (1956) 
(agency rule limiting number of broadcasting stations an individual can own eliminates need for 
hearing to decide whether to issue license to individual who already owned maximum number 
permitted by rule). 

''"412 U.S. at 621. 



998 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Over the years, scholars, judges, and Justices have shown near unanimity 
in extolling the virtues of the rulemaking process.''^ For a period of several 
years. Justices Douglas and Harlan attempted to convince a majority of the 
Court to recognize the enormous advantages of rulemaking by holding that 
agencies can announce "rules" of general application only through the 
rulemaking process. ' '^ 

Commentators have identified at least eight different advantages of 
rulemaking over adjudication as a source of generally applicable rules. First, 
rulemaking can be expected to yield higher quality rules than adjudication. 
When an agency announces a "rule" in the process of adjudicating a specific 
dispute, it has before it only the parties to the particular dispute and the 
evidence those parties tender. Traditionally, that evidence focuses on the 
specific, historical facts related to those parties and their relationship. The 
factual pattern on which the agency predicates its rule may be widely 
generalizable or entirely idiosyncratic. The agency has no way of knowing 
whether the fact pattern before it applies to 100 percent, 50 percent, 10 
percent, or 1 percent of superficially analogous relationships or incidents. 
Other common patterns may suggest entirely different rules. Moreover, the 
process of making a general rule of conduct should not be based primarily on 
resolution of specific historical facts. The primary purpose of rules is to affect 
future conduct or to resolve issues of legislative fact. Thus, rules should be 
based on evidence relevant to that goal. An agency contemplating 
announcement of a rule should search for answers to questions like: How can 
we channel the future conduct of regulatees or beneficiaries in ways that will 
further our statutory mission? What is the general relationship between 
exposure to a particular toxic substance and various adverse health effects? An 
adjudication rarely yields significant, high quality evidence relevant to those 
questions.''* 

By contrast, all potentially affected members of the public are given an 
opportunity to participate in a rulemaking proceeding. The frame of reference 
established by the agency's notice of proposed rulemaking (e.g., we are 



^^^See, e.g., R. Pierce, S. Shapiro & P. Verkuil, Adminictrative Law and Process §6.4.1 
(2d ed. 1992); K. Davis, ADMiNiyrRATFVE Law Treatise §6.38 (2d ed. 1978); Bernstein, The 
NLRB's Adjudication-Rule Making Dilemma Under the Administrative Procedure Act, 79 Yale L. 
J. 571 (1970); Shapiro, The Choice of Rulemaking and Adjudication in the Development of 
Administrative Policy, 78 Harv. L. Rev. 921 (1965). 

^^^See, e.g., NLRB v. Wyman-GortJon Co., 394 U.S. 759, 777-78 (1969) (Douglas, J., 
dissenting); id. at 781-82 (Harlan, J., dissenting); California v. Lo-Vaca Gathring Co., 379 U.S. 
366, 376-77 (1965) (Harlan, J., dissenting). 

^^^See ACUS Recommendation 91-5, 1 CFR §305.91-5 (1991); Grunewald, The NLRB's 
First Rulemaking: An Exercise in Pragmatism, 41 DukeL.J. 274 (1991). 



The Federal Administrative Judiciary 999 



considering adoption of the following rules as means of furthering specified 
statutory goals) invites participants to submit comments relevant to the 
forward-looking, instrumental purpose of a rule. Parties have a natural 
incentive to address questions concerning such issues as the generalizability of 
alternative patterns of fact, alternative means of shaping conduct, and practical 
problems in in^)lementing alternative rules. Similarly, parties have incentives 
to include in their comments studies and affidavits of experts addressing issues 
like: (1) the frequency of occurrence of various factual patterns; (2) the likely 
efficacy of alternative rules in shaping conduct; (3) the cost of compliance with 
alternative rules; and (4) the practical problems inherent in implementing or 
enforcing alternative rules in varying factual contexts. The rule produced by 
this process almost certainly will be instrumen tally superior to any "rule" 
produced by the process of adjudicating a specific dispute. 

The second advantage of rulemaking inheres in the enhanced political 
accountability of agency policy decisions adopted through the rulemaking 
process. Before an agency can make a binding policy decision through the 
rulemaking process, it must issue a public notice of its proposed rule. This 
Notice of Proposed Rulemaking enables citizens who oppose or support the 
proposal to alert members of Congress to the existence of the proposal and to 
express their views of the agency's proposal to those politically accountable 
officials. This, in turn, allows Congress to express to the agency its views 
concerning the proposed policy decision and, through the process of 
congressional oversight, to affect agency resolutions of policy disputes."^' By 
contrast, when an agency announces a policy decision in the context of 
resolving a particular adjudicatory dispute. Congress usually has no prior 
notice that the agency is proposing to make such a decision, and Congress has 
much less ability to influence the agency's policy decision. 

Three advantages of rulemaking fit under the broad heading of efficiency. 
Rulemaking eliminates the need to engage in expensive and time-consuming 
adjudicatory hearings to address issues of legislative fact; rulemaking 
eliminates the need to relitigate recurring issues; and, rules created through 
rulemaking are easier and less expensive to enforce and to implement than are 
"rules" announced in the course of adjudicating specific disputes. 

There is a substantial scholarly literature that documents the extraordinary 
inefficiency of adopting general rules through use of adjudicatory procedures. 
The Food and Drug Administration, for instance, once spent over a decade 



•'^'Stftf McCubbins, Noll & Weingast, Administrative Procedures as Instruments of Political 
Control, 3 J. L. Econ. & Org. 243 (1987). 



1000 Verkuil, Gifford, Koch, Pierce, and Lubbers 



conducting an oral evidentiary hearing to try to answer the question: What is 
peanut butter? "^^ 

The other three major advantages of rulemaking fit under the general 
heading of fairness. Legislative rules provide affected parties with clearer 
advance notice of permissible and impermissible conduct; they avoid the 
widely disparate temporal impact of "rules" announced and applied through 
adjudicatory decisionmaking; and, they allow all potentially affected members 
of the public an opportunity to participate in the process of determining the 
rules that affect them. 

Despite the many large advantages of rulemaking, no agency uses 
rulemaking to resolve all policy issues that can arise in agency adjudications, 
and some agencies rarely use rulemaking. Indeed, the use of rulemaking at 
many agencies has declined significantly over the last 10 to 15 years. There 
are three primary explanations for agency decisions to decline to use 
rulemaking to make policy decisions. First, rulemaking is inherently unsuited 
to policymaking in many important contexts. Second, a combination of 
actions by the courts and Congress has created a situation in which rulemaking 
often is extremely expensive, requires many years to complete, and requires an 
enormous commitment of agency resources. Third, OMB review of proposed 
rules has added still more to the cost and length of the rulemaking process. 

FERC's recent policymaking efforts in regulating the natural gas market 
illustrate both the advantages and the inherent limitations of rulemaking. 
Beginning in 1984, FERC made a complicated series of changes in its policies 
governing regulation of the gas market. It relied heavily on rulemaking to 
make and to implement those policy decisions. The success of its efforts was 
attributable largely to its use of rulemaking. "^^ It was unable to complete the 
process, however. FERC concluded that the rate design policies it had 
previously applied to gas pipelines were seriously incompatible with its new 
policies governing other characteristics of the gas market."*^ The agency also 
concluded, however, that this part of the policymaking process was not 
amenable to rulemaking. Gas pipelines' characteristics, markets, and functions 
vary to such an extent that FERC was not sure any uniform policy would work 



"^5tftf Merrill & Collier, 'Like Mother Used to Make: ' An Analysis of FDA Food Standards 
of Identity, 74 COLUM. L. Rev. 561 (1974); Hamilton, Procedures for Adoption of Rules of 
General Application: The Need for Procedural Innovation in Administrative Rulemaking, 60 
Calif. L. Rev. 1276, 1287-88 (1972). See also Pierce, The Choice Between Adjudicating and 
Rulemaking for Formulating and Implementing Energy Policy, 31 Hast. L. J. 1 (1979). 

^^^■^See Pierce, Reconstituting the Natural Gas Industry from Wellhead to Bumertip, 9 En. L. 
J. 1 (1988). 

^^^See General Policy Statement Providing Guidance with Respect to the Designing of Rates, 
47 FERC 61,295 (1989). 



The Federal Administrative Judiciary 1 00 1 



well. Moreover, FERC lacked confidence that it had sufficient understanding 
of the effects of alternative rate designs in differing circumstances to address 
the issue on a definitive basis. Thus, the agency announced its policy goals in 
general terms and asked its AUs to consider ways of implementing those goals 
as each pipeline's rate design comes before an AU in the context of an 
adjudicatory dispute. 

FERC's use of rulemaking as a means of making binding policy decisions 
is generalizable to many agencies. Both regulatory and benefit agencies often 
use rulemaking to a point, but then discover that the other recurring policy 
issues they confront are not amenable to rulemaking, at least until the agency 
has a better understanding of the issues. At that point, the agency relies on the 
case-by-case adjudicatory process as its primary means of making policy. 

In addition to these inherent limits on the efficacy of rulemaking, many 
agencies have been deterred from extensive use of rulemaking by the high cost 
and lengthy delay that now characterizes the rulemaking process. Some 
agencies that used to rely extensively on rulemaking have very nearly given up 
on the process.*'*^ 

There are at least two explanations for this phenomenon. In the case of 
several important agencies, Congress has added expensive and time-consuming 
procedures to the normal APA notice-and-comment rulemaking process. The 
FTC Improvement Act of 1974,"" and the Toxic Substances Control Act of 
1976,"*^^ illustrate this selectively implemented congressional innovation. An 
interested person is entitled to "present his position orally" if "the Commission 
determines that there are disputed issues of material fact," and "to conduct 
such cross-examination... as the Conmiission determines (i) to be appropriate, 
and (ii) to be required for a full and true disclosure with respect to such 
issues. " 

Congress' intent in FTCIA and TSCA was laudable. It wanted to provide 
an opportunity for limited oral testimony and cross-examination with respect to 
those few specific issues of contested fact critical to the outcome of a 
rulemaking. This congressional innovation has been a failure, however. 
Agencies subject to statutes that require limited cross-examination on a limited 
number of issues provide instead a broad right to cross-examination with 
respect to all issues raised by a proposed rule. That, in turn, virtually 



^^^See Mashaw & Harfst, Inside the National Highway Traffic Safety Administration: Legal 
Determinants of Bureaucratic Organization and Performance, 57 U. Chi. L. Rev. 443 (1990); J. 
Mendeloff, The Delemma of Toxic Subranges Regulation 7-16 (1988); Pierce, Two Problems 
in Administrative Law: Political Polarity on the D.C. Circuit and Judicial Deterrence of Agency 
Use of Rulemaking, 1988 Duke L. J. 300. 

•'<*15 U.S.C. §57a. 

"'''^15 U.S.C. §2601. 



1002 Verkuil, Gifford, Koch, Pierce, and Lubbers 



eliminates rulemaking as a viable regulatory tool; FTC, for instance, returned 
to near complete reliance on case-by-case adjudication as its primary vehicle 
for announcing "rules" once it realized that a single rulemaking with oral 
hearings and cross-examination requires many years to complete."* 

The reason for the failure of the congressional innovation is easy to identify 
in retrospect. When Congress requires an agency to permit limited cross- 
examination on a limited set of factual issues, the agency cannot predict how a 
reviewing court will assess the agency's attempt to comply with the statutory 
command. Suppose that a proposed rule raises a total of 26 issues of fact, 
issues A through Z. The agency determines that five issues, A-E, are so 
important and highly controverted as to justify limited oral evidence and cross- 
examination. Once the agency has completed the lengthy rulemaking process, 
a reviewing court can easily conclude that issue Q, for instance, also justified 
this treatment. To avoid this significant risk, the agency must allow an oral 
hearing on all issues, A-Z. The same problem arises with respect to any 
agency attempt to limit the amount of oral evidence and cross-examination 
allowed on any issue. Since a reviewing court always can conclude that the 
agency limit, be it 10 questions per party or 100 questions per party, is 
insufficient "for a full and true disclosure with respect to such issues," the 
agency must allow unlimited oral testimony and cross-examination with respect 
to each issue to avoid a high risk of reversal."'*' Through this understandable 
agency reaction to an imprecise command, the congressional attempt to permit 
highly constrained oral testimony and cross-examination in rulemakings has 
become instead a mandate to permit unlimited oral hearings in rulemakings. 
That, in turn, so increases the cost of a rulemaking and the time required to 
complete a rulemaking that the agency rarely uses rulemaking. 

The second source of deterrence of agency use of rulemaking is the 
judiciary. APA section 553 (c)"^ requires an agency to "incorporate in the 
rules adopted a concise general statement of their basis and purpose, " APA 
section 706"^' instructs a court to reverse an agency rule if it is "arbitrary" or 
"capricious." Reviewing courts routinely apply the arbitrary and capricious 
test to rulemaking in a manner that replaces the statutory adjectives "concise" 



"*5e<f ACUS Recommendations 79-1, 80-1. See also Boyer, Report on the Trade 
Regulation Rulemaking Procedures of the Federal Trade Commission, 1979 ACUS 437 and 1980 
ACUS 33. 

"^^is high risk of reversal is illustrated well by Corrosion Proof Fittings v. EPA, 947 F.2d 
1201, 1211 (5th Cir. 1991) (reversing rule that required 12 years to promulgate on basis, 
interalia, that agency should have allowed "full cross-examination," rather than selective cross- 
examination). 

"^5U.S.C. §533(c). 

"^'5 U.S.C. §706. 



The Federal Administrative Judiciary 1 003 



and "general" with the judicial adjectives detailed and encyclopedic. To avoid 
significant risk of judicial reversal of a rule as arbitrary and capricious, an 
agency knows that it often must incorporate a statement of basis and purpose 
several hundred pages long. The statement must discuss to the satisfaction of a 
court all important issues raised in comments, all statutory decisional factors, 
and all superficially appealing alternatives to the rule adopted."^ This 
increases significantly the amount of time required to issue a rule and the 
agency resources that must be devoted to a rulemaking. It is not uncommon 
for a single rulemaking to require a decade and commitment of 10% of an 
agency's total staff resources. 

When the agency completes the time-consuming and burdensome 
rulemaking process, it is by no means assured of judicial affirmance. During 
the period 1984-85, reviewing courts affirmed only 40% of agency rules. "^ 
Moreover, reviewing courts are less charitable to agencies that rely on 
rulemaking. Courts reverse or remand rulemakings more frequently than they 
reverse or remand adjudications, and they reverse adjudications conducted by 
agencies that rely heavily on rulemaking more frequently than they reverse 
adjudications conducted by agencies that decline to use rulemaking."^* 

The final source of agency deterrence of rulemaking is the cost, 
uncertainty, and delay attendant to OMB review. Executive Order 12,291 
instructs all Executive Branch agencies to submit "major rules" to OMB for 
prepromulgation analysis and review. That process can yield protracted 
negotiations between the agency, OMB, and other agencies with conflicting 
views on the rule. The need for centralized review of major rules to allow 
interagency policy coordination has been well -documented."''^ Ways must be 
found, however, to accomplish this function with less adverse effect on agency 
incentives to act by rulemaking. OMB seems to have made some progress in 
this respect. The average time required for OMB review of major rules 
declined significantly between 1985 and 1988. "^^^ 

Thus, while rulemaking is a highly desirable mechanism through which 
agencies can control the policy components of adjudicatory decisions. 



""^Stfir J. Mashaw & D. Harfst, The Struggle for Airro Safety (1990); Pierce, The 
Unintended Effects of Judicial Review of Agency Rules, 43 ADMIN. L. Rev. 7 (1991). 

"^Schuck & Ellioa, To the Chevron Station: An Empirical Study of Federal Administrative 
Law, 1990 Duke L. J. 984, 1021 . 

"^''W. at 1021-23. 

"^^5tftf Strauss & Sunstein, The Role of the President and OMB in Informal Rulemaking, 38 
Admin. L. Rev. 181 (1986). We do not address the important questions concerning the extent to 
which this process should be made open to public scrutiny. See Gilhooley, Executive Oversight 
of Administrative Rulemaking: Disclosing the Impact, 25 IND. L. Rev. 299 (1991). 

^^''^See 1988-89 Regulatory Program of the United States, App. IV, Exh. 1 1, at 555. 



1004 Verkuil, Gifford, Koch, Pierce, and Lubbers 



rulemaking can not always serve this important function. Many policy issues 
are not amenable to resolution by rule, and the high costs and lengthy delay 
attendant to the rulemaking process preclude its use even in many 
policymaking contexts that are otherwise appropriate for rulemaking. 

b. By Formal Review 

APA section 557' "^ authorizes an agency to "review" any initial decision 
of an employee who presides in an adjudication. It then confers on the 
reviewing agency "all the powers which it would have in making the initial 
decision. " That language has the effect of allowing the agency to substitute its 
judgment for that of the adjudicatory officer with respect to most issues 
resolved in the adjudicator)' officer's initial decision. Thus, an agency can 
maintain some degree of control over the policy components of adjudicatory 
decisionmaking by exercising its broad power to review each adjudicatory 
decision. 

This potential method of maintaining control over policy is subject to two 
limitations. First, courts attach some significance to the decision of the 
adjudicatory officer when they review the agency's decision. Thus, to some 
extent, the fmdings and conclusions of the adjudicatory officer limit the 
agency's power to substitute its judgment for that of the adjudicator)' officer. 
We discuss the complicated relationship between adjudicatory officers' initial 
decisions and judicial review of agency decisions in Chapter VII(A). 

Second, agencies do not have sufficient time or resources to engage in 
plenary review of each initial decision of an adjudicatory officer. This 
constraint exists at every agency. Even agencies that routinely review each 
initial decision cannot possibly engage in a thorough review of each. The 
problem increases as the agency's caseload increases. An agency whose 
adjudicatory officers issue tens of thousands of initial decisions each year 
cannot review with care more than a modest fraction of those decisions. As a 
result, the mass justice agencies have severely limited ability to use formal 
agency review as a means of maintaining control over policy or mterdecisional 
consistency. Indeed, the Social Security Administration does not review any 
of the quarter million decisions its AUs issue each year. Its Appeals Council 
reviews a small fraction of those decisions, but the Appeals Council itself is a 
decentralized institution that consists of a large number of independent 
decisionmakers."^ 



"^5 U.S.C. §557. 

"^For a thorough analysis of this problem in the SSA context, see Koch & Koplow, The 
Fourth Bile ai the Apple: A Study of the Operation and Utility of the Social Security 



The Federal Administrative Judiciary 1CX)5 



c. By Precedent 

To some extent, agencies can maintain control over policy and can maintain 
interdecisional consistency by establishing a system of precedents analogous to 
the system long used by federal and state courts. The needed elements of such 
a system are (1) reasoned opinions, (2) accessibility of prior decisions, both to 
the tribunal and to parties, and (3) treating precedents as binding unless they 
are overruled. 

A system of precedents can enable an agency to maintain control over the 
policy components of the decisions of its adjudicatory officers without 
necessarily reviewing each such decision in detail. The agency can announce 
and apply a policy in a single case and then assume that its adjudicatory 
officers will adhere to precedent by applying the same principle in all similar 
cases that come before them in the future. 

Many agencies have established a system of precedents, including 
published decisions in every case and an index that allows any adjudicatory 
officer and any member of the public reasonable access to each decision. In 
such an agency, adjudicatory officers routinely find and apply agency 
precedents."^ Some agencies are not well-positioned to establish such a 
system, however. Again, the source of the problem is caseload. An agency 
whose adjudicatory officers decide tens of thousands or hundreds of thousands 
of cases per year cannot write a reasoned decision in each case it reviews, 
make all decisions publicly available, and provide an index that renders all the 
decisions practically accessible to the public and to the agency's adjudicatory 
officers. 

d. By Interpretative Rule 

Some agencies attempt to maintain policy control by issuing interpretative 
rules. Interpretative rules differ from legislative rules in two important 
respects. They can be issued without using notice-and-comment procedure, 
and they have no binding effect on members of the public. 

SSA relies heavily on interpretative rules, which it calls Social Security 
Rulings, to make policy applicable to its enormous and complicated benefit 
programs. SSA takes the position that its Rulings bind its AUs."*^ Indeed, 
SSA's practice of issuing binding Social Security Rulings was an integral part 
of the agency's commitment to Congress to obtain greater consistency in its 



Administration's Appeals Council, 1987 ACUS 625, reprinted in, 17 Fla. St. L. Rev. 199 
(1990). 

^^^See findings of surveys of adjudicatory officers discussed in Chapter IV. 

^^^See 57 Fed. Reg. 7596-98 (March 3, 1992). 



1006 Verkuil, Gifford, Koch, Pierce, and Lubbers 



benefit decisionmaking. ''*' SSA's AUs do not consider themselves bound by 
SSA Rulings, however."^ This issue has not been definitively resolved. ••" 

The efficacy of interpretative rules as a means of controlling policy varies 
with the degree of independence of an agency's adjudicatory officers. 
Presiding officers who are dependent on an agency are likely to defer to its 
officially announced policies even if those policies are not contained in an 
instrument that is formally binding. As SSA*s experience illustrates, 
independent adjudicatory officers believe that they have the discretion to 
decline to apply any agency policy statement that does not formally bind them. 

Of course, an agency can avoid the problem of the questionable efficacy of 
interpretative rules by relying entirely on legislative rules to announce policy. 
As mentioned, this option has become unattractive because the procedure for 
issuing a legislative rule has become extraordinarily long and expensive."" Of 
course, section 553 of the APA does contain an exemption from notice-and- 
comment for rules concerning "benefits" (as well as those pertaining to public 
property, loans, grants and contracts). The Conference, in 1969, because of 
the growing importance of such rules to the public, urged elimination of that 
exception and also urged agencies to voluntarily eschew its invocation."*^ 
Most relevant agencies did, including the Department of Health and Human 
Services."^ It may be time, given the difficulties with notice-and-comment 
rulemaking to rethink the need for a more streamlined way to issue rules 
concerning benefit program administration to permit such policies to become 
definitely binding on AUs."*^ With such a change in its method of operation, 
the agency could increase significantly its ability to control the policy 
components of adjudicatory decisions without any other change in the now 
high degree of independence enjoyed by its adjudicatory officers. On the other 
hand, elimination of the notice-and-comment procedure would eliminate some, 
but not all, of the advantages of making policy by rule. Of course, it would be 



"*'5tftf H.R. Rep. No. 618, 98th Cong., 2d Sess. 20-22, reprinted in 1984 U.S. Code Cong. 
& ADM. News 3038, 3057-59. 

"^5tftf findings of surveys of adjudicatory officers reported in section FV. See also Koch & 
Kaplow, supra note 1178 at 232-33 (1990). 

"*^ See Bunnell v. Sullivan, 947 F.2d 341, 346 n. 3 (9th Cir. 1991) (SSA Rulings do not 
have the force of law but are entitled to judicial deference). 

^^^See Chapter VI (D) (2a) 

"^ACUS Recommendation 69-8, "Elimination of Certain Exemptions from the APA 
Rulemaking Requirements," 1 CFR §305.69-8 (1992). 

"^6 Fed Reg. 2532 (1971). See also 47 Fed. Reg. 26,860 (1982) (notice of HHS proposal 
to reinstate exemption). 

"*^Most also would be subject to pre-enforcement judicial review, see Abbott Laboratories 
v. Gardner, 387 U.S. 136 (1967. 



The Federal Administrative Judiciary 1 007 



far better if Congress, the courts, and OMB eliminated some of the 
unnecessary costs and risks of following the notice-and-comment procedure. 
Then agencies like SSA would not be required to choose between two 
unattractive alternatives. 

e. Informal Pressure 

An agency also can attempt to use less formal means of enhancing 
consistency and controlling the policy components of adjudicatory decisions. 
The quality assurance and selective review programs SSA attempted to 
implement in the 1970s and early 1980s illustrate the many controversial issues 
raised by such efforts. SSA's programs clearly were intended to enhance 
interdecisional consistency. Depending on how you view the programs, they 
also created impermissible bias, enhanced accuracy, and/or allowed SSA to 
control benefits policy in contexts that were not amenable to control through 
other means. 

Once SSA discovered that its disability benefits adjudication system 
implemented by 700 independent AUs was plagued by major interdecisional 
inconsistencies attributable to the varying personal philosophies of its ALJs,"^ 
it attempted to address that problem by implementing several versions of 
informal quality controls. In this effort, it initially had the blessing, indeed 
the prodding, of Congress. "^^ 

SSA addressed the problem of AU inconsistency by ordering its Appeals 
Council to review on its own motion large numbers of AU decisions. Most of 
the decisions selected for review had been made by AUs with aberrationally 
high benefit grant rates. The Appeals Council initially reviewed 100 percent 
of the decisions of AUs with grant rates higher than 74 percent. After AUs 
in that category expressed concern that the SSA might attempt to remove them 
for cause if they continued their historic pattern of decisionmaking, several 
courts held that this method of controlling AU conduct infringed on the 
decisional independence guaranteed AUs by the APA."^ One court— the 
Second Circuit—upheld the validity of the program."" By the time the Second 



"^5e^ Chapter VI (C) (2). 

"^or detailed descriptions of the various programs, see J. Mashaw, et al., supra n. 1135. 
See also Pierce, Political Control Versus Impermissible Bias in Agency Decisionmaking: Lessons 
from Chevron and Mistretta, 57 U. Chi. L. Rev. 481, 501-19 (1990). 

^^'^See, e.g., Barry v. Bowen, 825 F.2d 1324, 1330-31 (9th Cir. 1987); Association of 
Administrative Law Judges v. Heckler, 594 F.Supp. 1132, 1141-43 (D. DC. 1984); Sailing v. 
Bowen, 641 F.Supp. at 1055-56, 1073; W.C. v. Heckler, 807 F.2d 1502, 1504-05 (9th Cir. 
1987), opinion amended, 819 F.2d (9th Cir. 1987). 

""Nash V. Bowen, 869 F.2d 675, 678-81. 



1008 Verkuil, Gifford, Koch, Pierce, and Lubbers 



Circuit upheld the program, however, SSA had abandoned it in response to 
pressure from AUs and from other courts. 

These different judicial reactions stemmed in part from the philosophies of 
the judges and in part from their differing findings concerning the effects of 
the program. Each of the courts that invalidated the AU-targeted own-motion 
review program found that it systematically biased the AU decisionmaking 
process in favor of denial of benefits. The court that upheld the program 
found that its only effect was to enhance consistency, which it found lay within 
the Secretary's broad discretionary authority to improve the decisionmaking 
process.'"^ That court suggested that it, too, would have held the program 
invalid if it introduced a systemic bias against applicants."^ 

The AU-targeted review program clearly enhanced consistency, but it is 
difficult to determine whether it also changed the mean rate of benefit 
denials."^ This problem may inhere in any attempt to enhance interdecisional 
consistency through use of informal quality control programs. It is difficult 
for any outside observer, or even for the agency itself, to know whether an 
attempt to increase consistency also affects the mean outcome of disputes. 

By contrast, it is easy to demonstrate the beneficial effect of establishing a 
presumptive range of benefit grant or denial rates in advancing the goal of 
enhanced interdecisional consistency. Before SSA implemented its informal 
quality control programs, its then 700 ALJs granted benefits in 50 percent of 
cases on average. Grant rates varied widely by ALJ, however, with 10 percent 
of AUs granting benefits in over 75 percent of cases and 10 percent granting 
benefits in less than 25 percent of cases. 

Reducing the variation in AU benefit grant rates inevitably enhances 
consistency. Given the large number of cases decided by each AU and the 
random assignment of cases to AUs, the wide variation in benefit grant rates 
suggests strongly that AUs were using much different decisional standards. 
According to elementary statistical analysis, if all AUs applied the same 
decisional standard, over 95 percent of AUs would have a grant rate between 
45 and 55 percent; over 99 percent would have a grant rate between 40 and 60 
percent. Moreover, the grant rate of an individual AU would vary randomly 
around the mean grant rate from period to period. Thus, the probability that 
an individual AU's grant rate would fall outside the 40 to 60 percent range in 
two consecutive years is less than one-tenth of one percent. Forcing AUs to 
have grant rates within a specified range centered on the median grant rate 



"^W. at 681. 

"93/J. 

•"^For an excellent description of the difficulty of determining whether the quality control 
program altered the rate of benefit denials, see Stieberger v. Heckler, 615 F.Supp. 1315, 1379, 
1390-96. 



The Federal Administrative Judiciary 1009 



(e.g., 40 to 60 percent) would force them to adopt similar decisional 
standards. Thus, if SSA had established a presumptively acceptable range of 
grant rates, instead of selectively reviewing the decisions of ALJs with 
unusually high grant rates, it would have reduced the problem of 
interdecisional inconsistency by inducing both its unusually generous AUs and 
its unusually stingy AUs to modify their behavior to conform to group norms. 
SSA was able to accomplish only modest improvements in interdecisional 
consistency through its informal quality control programs. The high degree of 
independence conferred on AUs by the APA proved to be a major obstacle to 
SSA's ability to further that goal. SSA abandoned the program in 1984. 

SSA's effort to enhance interdecisional consistency also would have 
increased decisionmaking accuracy. Accuracy is a primary goal of due 
process."'^ To understand why consistency is a good measure, and perhaps 
the only measure, of accuracy in this context, consider the nature of typical 
disability cases. The largest proportion of cases that reach the AU level 
involve allegations of chronic pain. The second largest category of cases 
involve allegations of neuroses— usually anxiety or depression. Neither pain 
nor neurosis can be measured objectively. In the two most common 
decisionmaking contexts—chronic pain and neurosis— AUs are required to 
make yes-or-no decisions on disability when the applicant's ability to work and 
the severity of the underlying illness could fall anywhere along a vast 
spectrum. The AU can hope to do little more than draw a line on the 
disability spectrum and use one's own judgment to determine on which side of 
the line individual cases fall. 

Accuracy in an objective sense obviously is not a realistic goal in this 
context. Accuracy in a relative sense is attainable only by forcing AUs to 
locate the yes-no line at approximately the same point along the disability 
spectrum. The comparative advantage of using AUs lies in their ability to 
place pain cases on a spectrum; for example, from 1 to 10, with "1" meaning 
slight pain and "10" meaning extreme pain. The disadvantage of using AUs is 
that different AUs draw the line separating tolerable pain from disabling pain 
at different points on the spectrum; for example, some AUs will find level-2 
pain disabling while others will find level -9 pain tolerable. Consistency, and 
hence "accuracy," is attainable only by forcing each AU to maintain a benefit 
grant rate that lies within a relatively narrow range; for example, 40 to 60 
percent. This constrains AUs by making them draw the line between tolerable 
pain and disabling pain at about the same point on the relative pain spectrum. 

A carefully implemented quality assurance program of this type also can be 
characterized as a means through which the agency can control the policy 
components of adjudicatory decisions in a context that is impervious to other 



"'^5«r«r Mathews v. Eldridge, 424 U.S. 319, 335 (1976). 



1010 Verkuil, Gifford, Koch, Pierce, and Lubbers 



potential means of control. Extending the analogy drawn in the prior 
paragraph, establishing a presumptively correct range of benefit grant rates 
(e.g., 40 to 60 percent), is functionally equivalent to establishing a binding 
policy that chronic pain at or above the 4 to 6 level is disabling, while chronic 
pain below that level is not. Admittedly, this policy is less than precise. It 
might be argued, however, that this would be an improvement over the present 
situation in which each of 866 unconstrained, independent ALJs applies 
idiosyncratic personal policies with respect to the level of chronic pain 
required to make an individual eligible for disability benefits. 

Of course, the independent status of AUs need not be an inherent obstacle 
to agency use of quality control programs, including presumptive ranges of 
rates of granting or denying benefits. As the Second Circuit's decision in 
Nash V. Bowen^'^ illustrates, carefully designed and statistically sound 
programs of this type can be reconciled with the high degree of independence 
the APA accords to AUs. The problem here seems to lie in the statistical 
naivete of many other courts and of MSPB. Several courts held that SSA's 
program violated the APA, and MSPB refused to give credence to the agency's 
solid statistical evidence in the Goodman case, discussed in Chapter VI(D)(1). 

Statistically based quality control programs have disadvantages, however. 
As SSA's experience illustrates, AUs resent them intensely. Applicants for 
benefits, most of whom are likely to share judges' naivete concerning 
statistics, may also share that resentment and lose faith in the fairness of the 
adjudicatory process. Agencies can take other steps that may be almost as 
effective in reducing interdecisional inconsistency but that are much less 
controversial. An agency can compile statistics concerning the aggregate and 
individual decisionmaking patterns of its AUs and circulate reports of those 
statistics periodically to its AUs. This would allow AUs to self-identify as 
unusually generous or unusually stingy. This self-identification, combined 
with peer pressure, would encourage AUs to adopt decisionmaking standards 
closer to group norms. 



'^69 F.2d 675 (Id Cir. 1989). But see SSA v. Anyel,, MSPB AU Docket NO. 
CB752 19 1000971 (January 16, 1992) (SSA may not remove SSA AU baaed on reversal rale of 
87.6% despite showing that average reversal rate for all SSA ALJs was 40%). See note 1232, 
infra. 



The Federal Administrative Judiciary 101 1 



Establishing an Appropriate System of Performance 
Evaluation for ALJs 



1. The Current Prohibition Against Performance Appraisal 
of AUs 

Unlike almost all other federal executive branch employees, administrative 
law judges are excluded from the civil service performance appraisal 
system.'**^ Although the 1978 Civil Service Reform Act made it possible for 
agencies to bring actions against most other federal employees based on 
unacceptable performance,"* the Act explicitly exempted AUs from the 
performance appraisals required under that system. '^^ 

At the same time, the Civil Service Reform Act created the Senior 
Executive Service (SES) for most of the top level "supergrade" employees 
(other than Presidential appointees and AUs) in the executive branch.'^ In 
addition to providing SES members with certain benefits (increased 
compensation, opportunity for bonuses and sabbaticals, and some job 
protections), the Act also required a system of performance evaluations that 
was keyed to both compensation and possible removal from the SESJ^' 



"^^5 U.S.C. §4301 (2)(D) (1988) exempts AUs from the definition of "employee" for the 
purpose of the performance appraisal subchapters. Other employees not covered include those of 
the CIA and other national security agencies, foreign service members (who have then own "up- 
or-out" system), certain employees outside the United States, certain medical personnel in the 
Department of Veteran Affairs, temporary employees of less than one year, and Presidential 
appointees. 

"'^Prior to passage of the 1978 Reform Act agencies could only bring actions based on 
conduct impairing the "efficiency of the service." See Note, Administrative Law Judges, 
Performance Evaluation, and Production Standards: Judicial Independence Versus Employee 
Accountability, 54 G.W.L. Rev. 591, 602 (1986) {hereinafter 'Note, AU Performance 
Evaluation"). This extremely well-researched note, prepared by L. Hope O'Keefe, was very 
helpful in preparing this present analysis. 

'"^This was done to maintain "the present system of providing protection for administrative 
law judges." Id., citing the House report in the legislative history of the Reform Act. 

^"^See Developments in the Law-Public Employment, 97 Harv. L. Rev. 1611, 1647-1650 
(1984). 

'^'5tftf 5 U.S.C. §4311-4315 (1988). Section 4313 specifies the criteria for SES 
performance appraisals. They are to be "based on both individual and organizational 
performance, taking into account such factors as-(l) improvements in efficiency, productivity, 
and quality of work or service, including any significant reduction in paperwork; (2) cost 
efficiency; (3) timeliness of performance; (4) other indications of the effectiveness, productivity, 
and performance quality of the employees from whom the senior executive is responsible; and (5) 



1012 Verkuil, Gifford, Koch, Perce, and Lubbers 



Thus, under present law, almost all career federal employees in the 
executive branch, including senior managers, are subject to annual 
performance appraisals. The major exception is administrative law judges. 

Nor is this the only impediment to agency attempts to exert managerial 
control over ALT performance. AUs are also exempt from the normal 
requirement that appointees in the competitive service serve a probationary 
period before absolute appointment.'^ AU pay, until recent amendments to 
the pay laws, was to be "prescribed by [OPM] independently of agency 
recommendations or ratings, "'^^ and AUs were entitled to regular within- 
grade "step increases" without being subject to the usual rule that the agency 
head had to certify that the "work of the employee" "is of an acceptable level 
of competence."'^ The new AU pay system, enacted in 1990,'^^ formalized 
OPM control over AU pay according to a specific statutorily-mandated 
schedule of pay levels tied exclusively to seniority for all AUs, except those 
few placed by OPM in higher pay categories (primarily chief AUs or others 
with managerial duties). '^'^ 

Although the Administrative Procedure Act contains significant provisions 
intended to safeguard the independence of AUs from agency control, it has 
never explicitly barred agencies from conducting performance evaluation. Its 
provisions on AU pay, as discussed above, provided that CSC/OPM should 
prescribe compensation "independently of agency recommendations or 
ratings." But this provision hardly can be read to prohibit such ratings 
entirely—indeed it seems to assume them.'^^ Moreover, the 

disciplinary/removal provisions in section 11 (which survive today as 5 U.S.C. 
§7521) require agencies wishing to discipline or remove AUs to bring charges 

meeting affirmative action goals and achievement of [EEO] requirements." OPM regulations now 
provide for a system of periodic recertification of SES members. (Cite) 

^"^See 5 U.S.C. §3321 (1988); 5 CFR §2.4 (probationary period required for employees 
selected from registers or promoted to managerial positions) and 5 CFR §930.203a(b) 
(probationary period does not apply to AU appointments). 

'2035 U.S.C. §5372 (1988), repealed by Pub. L. No. 101-509, Title I, §104(a)(l), Nov. 5, 
1990, 104 Stat. 1445. This provision dated back to section 11 of the APA. 

'2»^5 U.S.C. §5335 (1988), prior to amendment by Pub. L. No. 101-590. 

'20^5 U.S.C. A. §5372 (1991). 

'^'^As of October 1991 only 18 of the 1,184 AUs were in the higher pay categories AL-1 or 
AL-2. All others were in AL-3 (A through F), which is based solely on length of service. 

'^^Indeed, Attorney General Clark's one caveat to Administration support of the bill that 
became the APA was to the inclusion of those quoted words. Clark reported that the Acting 
Director of the Bureau of the Budget "deems it highly desirable that agency recommendations and 
ratings be ftilly considered by the Commission." Letter from Attorney General Thomas Clark to 
Senator Pat McCarran, Chairman of the Senate Judiciary Committee, October 19, 1945, reprinted 
in Attorney General's Manual ON THE APA 123-125 (1947). 



The Federal Administrative Judiciary 1013 



before the CSC (now MSPB) showing good cause for the action. The MSPB 
has ruled that such a "good cause" charge may be based on agency productivity 
evaluations. 

Nevertheless, the statutory ban on ALJ "performance appraisals" and the 
even broader, longstanding CSC/OPM rule that states "An agency shall not 
rate the performance of an administrative law judge, "'^ when combined with 
the high threshold of proof demanded by the MSPB in charges brought against 
AUs on productivity grounds, have made it very difficult for agencies to exert 
managerial control over their AUs. 

As one perceptive commentator has written: 

Despite these apparently dispositive provisions proscribing 
agencies' ratings of AUs' performance, agencies face strong 
pressures to curb AUs who deviate from desired norms. 
Agency managers are thus frustrated by the delicate balance 
inherent in managing a group of critical employees charged 
with implementing an agency's policy but nevertheless 
supposedly independent of the agency. The APA and 
agencies' enabling statutes authorize agencies to review 
AUs' decisions, sometimes even de novo, as the primary 
means of ensuring AUs' accountability. However, from the 
perspective of the agency, the right to review AUs' 
decisions supplies insufficient control. Review permits only 
an after-the-fact correction of a single decision, and, 
although dislike of reversal undoubtedly shapes AUs' 
decisions, it does not normally modify behavior as 
effectively as the choice between conforming to a given norm 
and suffering direct adverse consequences. Agencies, 
therefore, gaze lustfully at the forbidden fruit of performance 
evaluation.'^ 

Although AUs, once appointed, essentially achieve life tenure, '^'^ it was 
not always contemplated that they would be so immune from any sort of 
performance review. In 1941, the Attorney General's Committee on 
Administrative Procedure recommended an Office of Administrative Procedure 
to appoint examiners, exercise general supervisory powers, and remove 



*^ CFR §930.211 (1991). This regulation "has remained essentially the same since 
[1947]." See Note, AU Performance Evaluation, supra note 1198at610,n. 113. 

^"^^Noie, AU Performance Evaluation, supra note 1 198 at p. 594-95 (footnotes omitted). 

12iOpg^ have been removed under §7521 and, as with other federal employees after 1978, 
there is no mandatory retirement age. {See Pub. L. No. 95-256, repealing requirement in 5 
U.S.C. 8335, of mandatory retirement at age 70.) 



1014 Verkuil, Gifford, Koch, Pierce, and Lubbers 



examiners after a hearing and for cause. It also recommended a fixed term of 
7 years. '2" 

The APA itself, while affording the AUs various protections and omitting 
a term t^pointment, did provide the Civil Service Commission with the 
authority to "make investigations, require reports by agencies, issue 
rqx)rts,... promulgate rules, appoint advisory committees..., recommend 
legislation.... "'2*2 j^q Commission, as described elsewhere in the report, did 
attempt to evaluate and rate incumbent examiners after the passage of the APA, 
but that attempt foundered. '^'^ 

2. The 1978 GAO Study 

After this episode, the Commission has eschewed any attempt to evaluate 
sitting AUs, instead concentrating its attention on the selection and assignment 
process. And with agencies essentially barred from any sort of formal 
performance evaluation, management concerns began to escalate. In 1978, the 
General Accounting Office released a major study of the administrative 
adjudication process. '^'^ A primary concern of the Comptroller General was 
with the ineffectiveness of agency personnel management with respect to AUs: 

Although Administrative Law Judges are agency employees 
with virtually guaranteed tenure until retirement, the 
Administrative Procedure Act specifically precludes agencies 
[from] evaluating the performance of Administrative Law 
Judges. This personnel management function was not 
assigned to any other organization or person. Evaluation, to 
include developing objective standards, is critical to an 
effective personnel management system. Without it, it is 
difficult, if not impossible, to meet most other major 
personnel management needs. GAO found that agencies are 
unable to 

. Identify imsatisfactory Administrative Law Judges and 
take personnel action, 

. Make effective use of Administrative Law Judges to 
assure maximum productivity. 



'2"5tftf Note, AU Performance Evaluation, supra note 1 198, at 597-598, n.30. 
'212APA §11, now 5 U.S.C. §1305 (1988). 
^^^^See discussion at Chapter II (H), supra. 

'^''^Comptroller General, Administrative Law Process: Better Management is Needed, 
General Accounting OfTice (May 15, 1978). 



The Federal Administrative Judiciary 1015 



. Plan adequately for Administrative Law Judge 
requirements to meet workload, 

. Provide the Civil Service Conunission with information to 
determine the adequacy of its Administrative Law Judges 
certifying practices, 

. Develop Administrative Law Judges to their maximum 
potential through training or diversity of experience, 

. Establish appropriate management feedback mechanisms 
to determine the effectiveness of an Administrative Law 
Judge personnel management system. '^•^ 

In his recommendations, the Comptroller General urged Congress to amend 
the APA to: 

. Assign responsibility for periodic evaluation of 
Administrative Law Judge performance to a specific 
organization. The responsible organization could be the 
Civil Service Commission by itself or as a part of an ad hoc 
committee composed of attorneys, Federal judges, chief 
Administrative Law Judges, agency officials, and the 
Administrative Conference of the United States. 

. Clarify the extent to which the Commission can perform 
its normal personnel management functions in the case of 
Administrative Law Judges—issuing personnel management 
guidelines and evaluating periodically agency compliance. 

. Establish an initial probationary period of up to 3 years 
and so eliminate immediate, virtually guaranteed, 
appointment and tenure. '^"^ 

A contemporaneous study by the Senate Governmental Affairs Conunittee 
urged that "Chief ALJs should take more responsibility for reviewing the work 
of their ALJs for both quality and productivity. "'^'^ 



'215/j. at iv. 
'2'6/J. at v-vi. 

'^•^Study on Federal Regulation, Vol. IV, "Delay w the Regulatory Process," 95th 
Cong., 1st Sess., at 110-112, 130 (Comm. Print July 1977). 



1016 Verkuil, Gifford, Koch, Pierce, and Lubbers 



These recommendations were fiieled by evidence that productivity among 
AUs, even at the same agency, varied considerably. The GAO study, for 
example, found that at the NLRB the 9 most productive AUs averaged 29 case 
dispositions per year and the 23 least productive averaged 12 cases. At 
OSHRC, the GAO found that 6 AUs averaged 95 case dispositions and 13 
averaged 44 cases. The Social Security Administration, as will be discussed 
below, identified AUs who were performing way below average in terms of 
monthly case dispositions. '^'^ While these are admittedly rough indications, 
not involving qualitative judgments, at a minimum, they present discrepancies 
that need to be explained.'^'' 

Perhaps in response to these studies, and in keeping with the spirit of civil 
service reform. Congress in 1979 and 1980 developed several legislative 
proposals for limited terms for AUs, coupled with performance evaluation by 
outside bodies such as 0PM or the Administrative Conference of the U.S., 
assisted by peer review panels. '^^ But these proposals were not enacted, partly 
because of the AU organizations' steadfast opposition and partly because 
election year politics in 1980 dampened Congress' enthusiasm for the various 
pending "regulatory reform" proposals.'^' 

3. Lawsuits By and Against ALJs 

In the 1980s, legislative proposals concerning AUs shifted to discussions 
of the AU Corps bill,'^ and debates over personnel evaluation shifted to the 
social security arena. The debate over the long-running dispute between 



'^'^Comptroller General, supra note 1214 at 32. Figures are for FY 1975. 

'^'^A more recent anecdote from the Interior Department shows that in 1987 the productivity 
of its Indian Probate Judges (then AJs, now AUs) increased from 200-250 to 300-360 cases 
annually after a reduction in the number of judges. The remaining judges picked up the slack. 
See U.S. Department of the Interior, Final Report on the Organization, Management and 
Operation of the Office of Hearings and Appeals (August 1990). 

^^^See Note, AU Performance Evaluation, supra note 1198 at 602-603 and accompanying 
notes. 

'^'Moreover, one proposed overseer of AU performance was notably unenthusiastic about 
this proposed assignment. See "Resolution of an Enhanced Role for the Administrative 
Conference in Procedural Reform" (Adopted December 13, 1979), 1979 Annual Report, 
Administrative Conference of the United States 74 (among the "undesirable additions to its 
primary responsibilities include. . . . Selecting or evaluating individual administrative law 
judges.) 

'^^Discussed, in Chapter Vn (B)(3), infra. Some supporters of the corps bill urged that 
divorcing AUs from the employing agencies would finally allow the establishment of a 
performance evaluation system. See Rich, The Central Panel System and the Decisionmaking 
Independence of Administrative Law Judges: Lessons For a Proposed Federal Program, 6 W.N. 
Eng. L. Rev. 643, 655-56 (1984). 



The Federal Administrative Judiciary 1017 



management at the Social Security Administration and SSA ALJs over 
performance evaluation has been addressed elsewhere in this report. '^^ Suffice 
it to say that it dates to the late 1970s, '^ was subject to mixed signals by 
Congress,'^ and resulted in a series of decisions by the courts'^ and the 
Merit Systems Protection Board'^ that have not provided very clear signals as 
to the limits of agency management prerogatives with respect to AUs. 

These cases have resulted either from AU organizations suing the Social 
Security Administration to block management initiatives, or from the SSA 
bringing charges "for good cause" against individual low-producing ALJs 
pursuant to 5 U.S.C. §7521. Each effort has met with mixed success. 

The ALJ-sponsored suits have arguably established the principle that it is 
improper for the agency to subject only those AUs with high allowance rates 
to review, counseling and possible disciplinary action; but it remains unclear 
whether the courts would have been so critical if similar review were extended 
to AUs with low allowance rates. '^ Agencies also appear to be courting 
judicial opprobrium when they establish any numerical caseload quotas (or 



•223see Chapters I (C)(E); m (D), VI (D) (I). 

^^•^See Subcomm. on Social Security of the House Comm. on Ways and Means, Social 
Security Adnunistrative Law Judges: Survey and Issue Paper (Comm. Print 1979). See also. 
Lubbers, Federal Administrative Law Judges: A Focus on Our Invisible Judiciary, 33 ADMIN. L. 
Rev. 107, 125 (1981). 

'^^^The 1980 Social Security Disability Amendments (known as the "Bellmon Amendment") 
directed the SSA to increase its own-motion review of AU decisions, expressing concern at the 
high rate of AU reversal of state-level denials of claims and of the variance of rates among AUs. 
See Ass'n of Administrative Law Judges v. Heckler, 594 F. Supp. 1 132, 1 134 (1984) (explaining 
the Bellmon Amendment). S00 generally. D. Gofer, Judgts, Bumaucrau, and the Question of 
Independence: A Study of the Social Security Administration Hearing Process, Greenwood Press, 
(1985). 

^^"^See, Ass'n of Administrative Law Judges v. Heckler, id., and other cases cited in Note, 
AU Performance Evaluation, supra note 1198 at 606, note 84. Since that article was published, 
the Second Circuit rejected an AU challenge to SSA productivity initiatives, finding SSA's 
"goal" of 338 AU decisions per year to be reasonable, Nash v. Bowen, 869 F. 2d 675, 680 (2nd 
Cir. 1989). 

^^''See discussion of MSPB cases in Rosenblum, Contexts and Contents of 'For Good 
Cause' as Criterion For Removal of Administrative Law Judges: Legal and Policy Factors, 6 
W.N. Eng. L. Rev. 593 (1984). 

^^^See Nash v. Bowen, supra note 1226 at 681. ("To coerce AUs into lowering reversal 
rates—that is, into deciding more cases against claimants— would, if shown, constitute in the 
district court's words, 'a clear infringement of decisional independence.'") See also Association 
of AUs V. Heckler, supra note 1226 at 1143. (Court is critical of SSA practices in this regard, 
but declines to grant injunction because "defendants appear to have shifted their focus.") See also 
the settlement in Bono v. SSA (W.D. Mo. 1979) discussed at Note, AU Evaluation, supra note 
1198 at 606, n.86. 



1018 Verkuil, Gifford, Koch, Pierce, and Lubbers 



even goals, if they are unreasonable ones). On the other hand, agency efforts 
to promote uniformity '^^ and efficiency in AU decisionmaking, including the 
keeping of individualized case-production statistics as well as the establishment 
of "reasonable goals," have been upheld by the same courts that have 
otherwise been critical of agency actions.'^ 

Cases brought by agencies to discipline or remove AUs under section 7521 
since 1946 number less than two dozen'^' and removals have been even 
rarer. '^2 Most of the cases resulting in removals or suspensions have been 
based on misconduct, occasionally on-the-bench actions, but most often other 



'^^Mis/i V. Bowen, supra note 1226 at 680. ("Policies designed to insure a reasonable degree 
of uniformity among ALJ decisions are not only within the bound of legitimate agency 
supervision but are to be encouraged.") 

^'^See Nash v. Bowen, supra note 1226, Goodman v. Svahn, 614 F. Supp. 726 (D.D.C. 
1985) (AU challenge to SSA management efforts dismissed). 

*^'The cases involving AUs were digested by MSPB Administrative Judge Paul J. Streb, 
"The AU Digest," Unpublished memorandum, July 6, 1990, on file at the Administrative 
Conference. See also cases cited by Timony, Disciplinary Proceedings Against Federal 
Administrative Law Judges, 6 W.N. Eng. L. Rev. 807, 807-08 n.1-2. (1984) and in Note, .AU 
Evaluation, supra note 1 198 at 606-07 n.86. 

'^^There have apparently been five forcible removals since 1946: McEachem v. Macy, 233 
F. Supp. 516 (W.D.S.C. 1964), affd, 341 F.2d 895 (4th Cir. 1965) (failure to pay debts); 
Hasson v. Hampton 34 Ad. L. Rep. 2d (P«StF) 819 (D.D.C. 1973), affd mem., D. C. Cir. (April 
20, 1976) (acceptance of food, drinks and entertainment from party's representative); In re 
Chocallo, 1 M.S.P.R. 335 (1980) (affirmed by unpublished opinions in D.D.C. and D.C. Cir.) 
(various acts of disobedience, misconduct and bias); Social Security Administration v. Davis, 19 
M.S.P.R. 279 (1984), qff'd, 758 F.2d 661 (CAFC 1984) (unpublished op.) Oewd and lascivious 
remarks to employees); and Social Security Administration v. Burris, 39 M.S.P.R. 51 (1988), 
affd, 878 F.2d 1445 (CAFC 1989) (unpublished op.) fmsubordination with travel vouchers, 
office disruptions, long-term pattern of outrageous conduct). In 1992, the SSA sought to remove 
an AU for (1) improperly applying Social Security law and an overly high reversal rate and (2) 
improperly treating 212 se claimants. The MSPB's AU rejected SSA's first reason, and accepted 
the second reason but reduced the penalty to a 90-day suspension. SSA v. Anyel, MSPB AU 
Docket No. CB752910009T1 (January 16, 1992). See also Benton v. United States, 488 F.2d 
1017 (AUs total disability could constitute good cause, but agency could not use involuntary 
retirement instead). These cases do not, of course, reflect resignations or settlements after 
charges were brought. 



The Federal Administrative Judiciary 1019 



behavior J^^ Cases involving "insubordination" have also led to disciplinary 
actions. '^^ This latter type of charge is strengthened by the generally accepted 
notion that AUs are subject to the general administrative direction of the 
en^loying agencies. The OPM Program Handbook on AUs, for example, 
recites that, "Administrative Law Judges are subject to agency administrative 
direction in such nonadjudicatory matters as hours of duty, travel, parking 
space, office space, office procedures, staff assistance and organizational 
structure. "'^^ 

Thus it seems clear that the MSPB procedure is a sufficient "weapon" 
against AUs engaged in misconduct or insubordination.'^^ The difficulty with 
the disciplinary process comes with respect to cases involving low productivity 
or inefficiency. In these cases, all involving the SSA, the agency has been 
unsuccessful in its cases before the MSPB. 

In the trilogy of SSA-AU productivity cases decided by the MSPB in 
1984, '237 the agency brought to the MSPB what it considered to be evidence of 

^^^E.g., id. See also SSA v. Burns, 39 M.S.P.R. 51 (1988) (abusive language toward 
supervisors would have warranted 30-day suspension; misuse of free mail privilege would have 
warranted 60-day suspension; removal on other grounds); SSA v. Friedman, 41 M.S.P.R. 430 
(1989), (canceling hearings without reason; 14-day suspension); SSA v. Glover, 23 M.S.P.R. 57 
(1984) (vulgarity toward supervisor, throwing files; 120-day suspension); SSA v. Carter, 35 
M.S.P.R. 485 (1987) (sexual harassment of employees; 70-day suspension); Department of 
Commerce v. Dolan, 39 M.S.P.R. 314 (1988) (kicking employee; 14-day suspension); In re 
Glover, 1 M.S.P.R. 660 (seizing memo, pushing employee, pressing cover of copy machine on 
employee's hand; 30-day suspension); In re Spielman, 1 M.S.P.R. 53 (1979) (falsifying facts on 
ALJ application to seek higher grade; 60-day suspension). All of these cases were affirmed by 
unpublished opinions in the courts of appeals. See Streb, ALJ Digest, supra note 1231 . 

^"^E.g., SSA V. Brennan, 27 M.S.P.R. 242 (1985), affd sub. nam. Brennan v. DHHS, 787 
F.2d 1559 (CAFC) (refusal to follow case processing procedures, including routing of mail, use 
of worksheets, etc.; 60-day suspension); SSA v. Manion, 19 M.S.P.R. 298 (1984) (refijsal to 
schedule hearings; 30-day suspension); SSA v. Arterberry, 15 M.S.P.R. 320 (1983); (refusal to 
hear cases outside area; 30-day suspension); SSA v. Boham, 38 M.S.P.R. 540 (1988) (refusal to 
hear cases requiring travel; 75-day suspension). 

^^^Supra note 985 at 9. The Handbook goes on to caution, "Of course, administrative 
direction in such matters may not be used as a means of affecting, controlling, or sanctioning 
[ALJs'] decisions in 'formal' proceedings." Id. 

'^^^ot that the agency always prevails in these claims. See SSA v. Glover, 23 M.S.P.R. 
47, 70-78 (1984) (criticizing staff member in decision or in memo to supervisor not good cause 
for discipline); SSA v. Brennan, 27 M.S.P.R. 242, 248-49 (1985) (critical memo to supervisor 
not good cause); SSA v. Burris, 39 M.S.P.R. 51, 60-63 (1988) (failure to stop criticizing agency 
in decision not good cause). In each of these cases, however, discipline was approved on other 
grounds. It also is fair to ask whether "insubordination" covers an AU's repeated failure to 
follow agency policy. No charges brought on such a basis have been identified. 

'237SSA V. Goodman, 19 M.S.P.R. 321; SSA v. Brennan, 19 M.S.P.R. 335, opinion 
clarified, 20 M.S.P.R. 35; and SSA v. Balaban. 20 M.S.P.R. 675. 



1020 Verkuil, Gifford, Koch, Pierce, and Lubbers 



unacceptably low productivity. In the lead case, SSA produced evidence that 
the judge's disposition rate for the years in 1980-81 was 15 to 16 cases per 
month compared to an average of 30 to 32 for all SSA AUs. In addition, his 
average monthly "pending" caseload for 1981 was 64, compared with 178 for 
all SSA AUs. '238 After a hearing, the MSPB AU rejected the AU's legal 
defenses and recommended dismissal. 

The MSPB heard oral arguments on the case and unanimously ruled that 
although "there is no generic prohibition to the filing of this charge," the 
SSA's evidence that the judge's case dispositions were half the national 
average was not enough to show unacceptably low productivity "[i]n the 
absence of evidence demonstrating the validity of using its statistics to measure 
comparative productivity." The Board opined that SSA cases were not 
fungible and that SSA's comparative statistics did not take into sufficient 
account the differences among these types of cases. The same reasoning was 
later applied to two other pending cases against SSA AUs with similar 
productivity records.'^' 

The result amounted to a pyrrhic victory for the SSA. The agency won the 
right to bring low-productivity-based charges against AUs, but was handed a 
virtually insurmountable burden of proof. Despite the fact that social security 
disability cases, because of their high volume and relative fungibility, lend 
themselves to statistical comparison (at least when compared to other types of 
agency adjudication), the MSPB found that several years' worth of half-of- 
average production did not meet its test without greater analysis of the 
particular cases heard by the cited judge. Moreover, two of the judges 
involved in these cases later recovered attorney fees of almost $250,000 
against the Government.'^ It is thus not surprising that SSA has brought no 
productivity-based charges to the MSPB since 1984. 

Nevertheless, the Goodman trilogy, by establishing the principle that 
agencies may, for the purjxjse of bringing Section 7521 actions, collect case- 
production statistics, does provide a basis for agency managerial initiatives 



^"^^See Rosenblum supra note 1227, at 621 (citing the MSPB ALJs recommended decision). 

^^'^SSA V. Brennan and SSA v. Balaban, see note 1237 supra. 

'^^elephone interview with Larry Mason, Executive Assistant to the SSA Associate 
Commissioner, Office of Hearings and Appeals (referring to Goodman and Balaban cases), 
August 1992. See also SSA v. Goodman, 33 M.S.P.B. 325 (1987) (fmding Goodman entitled to 
attorney fees and urging settlement as to amount.) 



The Federal Administrative Judiciary 1 02 1 



notwithstanding the statutory exemption of AUs from the performance 
appraisal system.'^' 

The good cause procedure for disciplining "bad apple" AUs is rightly seen 
as a protection of the judges* decisional independence. It requires a full APA 
hearing before an MSPB AU. The "for good cause" test is taken quite 
seriously by the MSPB and, obviously, an agency will think twice before 
mounting an expensive, time consuming, and disruptive case against one of its 
own sitting judges. This is as it should be. Agencies should view the 
initiation of such proceedings, whether on grounds of misconduct, 
insubordination, or low productivity, as a last resort. 

Consistent with this view, however, agencies should establish other 
approaches for assessing and dealing with apparent or alleged instances of 
misbehavior, bias or unacceptably low productivity on the part of their AUs. 
The two guiding principles for doing this ought to be safeguarding decisional 
independence and peer review. It is interesting to note that few AUs surveyed 
for this report report frequent problems with overly close supervision of work 
(4%) or with pressure from agencies for different decisions (8%). On the other 
hand, 40% complain of pressure from agencies for faster decisions. '^^ 

4. The Conference Supports Management Norms for ALJs 

The Administrative Conference in 1978 combined these two principles into 
an approach to develop appropriate managerial norms for AUs at the Social 
Security Administration. In Recommendation 78-2 the Conference said:'^^^ 

The Bureau of Hearings and Appeals (BHA) [now Office of 
Hearings and Appeals (OHA)] possesses and should exercise 
the authority, consistent with the administrative law judge's 
decisional independence, to prescribe procedures and 
techniques for the accurate and expeditious disposition of 
Social Security Administration claims. After consultation 
with its administrative law judge corps, the Civil Service 
Commission, and other affected interests, [OHA] should 



'^'in some respects this is not new. As early as 1960, the Civil Service Commission denied 
a petition from 19 ICC examiners who challenged a new agency monthly work report. The 
Commission stated "... regardless of this independent status, a hearing examiner is nonetheless 
an employee and it is both the agency's right and duty to have an account of his work and his 
hours of duty." Macy, The APA and the Hearing Examiner: Products of a Viable Political 
Society, 11 Fed.BarJ. 351, 424 (1967). 

^"^"^See 1992 AU survey, question #14 (Appendix IV A). 

'^■'Recommendation 78-2, "Procedures for Determining Social Security Disability Claims," 
§(A)(2); 1 CFR 305.78-2 (1991) 



1022 Verkuil, Gifford, Kcxth, Pierce, and Lubbers 



establish by regulation the agency's expectations concerning 
the administrative law judges' performance. Maintaining the 
administrative law judge's decisional independence does not 
preclude the articulation of appropriate productivity norms or 
efforts to secure adherence to previously enunciated standards 
and policies underlying the Social Security Administration's 
fulfillment of statutory duties. 

In 1986, in its Recommendation 86-7 on case management in agency 
adjudication, the Conference refined, and generalized, its earlier 
recommendation: '^ 

Personnel management devices. Use of internal agency 
guidelines for timely case processing and measurements of 
the quality of work products can maintain high levels of 
productivity and responsibility. If appropriately fashioned, 
they can do so without compromising independence of 
judgment. Agencies possess and should exercise the 
authority, consistent with the AUs or other presiding 
officer's decisional independence, to formulate written 
criteria for measuring case handling efficiency, prescribe 
procedures, and develop techniques for the expeditious and 
accurate disposition of cases. The experiences and opinions 
of presiding officers should play a large part in shaping these 
criteria and procedures. The criteria should take into account 
differences in categories of cases assigned to judges and in 
types of disposition (e.g., dismissals, dispositions with and 
without hearing). Where feasible, regular, computerized 
cases status reports and supervision by higher level personnel 
should be used in furthering the systematic application of the 
criteria once they have been formulated. 

Under both of these recommendations, the Conference emphasized 
safeguarding decisional independence, as well as significant ALT participation 
in the development of reasonable guidelines. 

Application of such criteria would not only improve agency-wide 
performance (indeed, they should be established and applied at the agency- 
review stage as well), they would also make it possible for agencies to better 



'^Recommendation 86-7, "Case Management as a Tool for Improving Agency 
Adjudication," 1, 1 CFR §305.86-7 (1991). Recently this recommendation was adopted by 
President Bush's Executive Order 12278, "Civil Justice Reform" Sec. 3, 56 Fed. Reg. 55195, 
55199 (October 25, 1991). 



The Federal Administrative Judiciary 1023 



address individual managerial problems. In the first place, the chief AU or 
other managing official (e.g., Director, Office of Hearings) could circulate 
statistics on case dispositions among the agency judges. 

This "peer pressure" would likely have a beneficial effect on performance. 
Indeed, agencies employing large numbers of AUs or AJs who resolve the 
same classes of disputes (e.g., SSA disability cases, inmiigration cases) should 
circulate periodic statistical analyses of aggregate and individual 
decisionmaking patterns. Through this mechanism, each judge would be able 
to compare his or her pattern of decisionmaking with that of his or her peers 
and with group norms. The ability to self-identify as, for instance, an 
unusually low-productivity adjudicator or an unusually generous or stingy 
adjudicator, when combined with peer pressure, should enhance both 
productivity and inter-AU consistency. Indeed, to their credit most ALJs 
responding to the survey acknowledge that mediocrity of some AUs is at least 
a "somewhat" serious problem. '^^ 

Where peer pressure does not solve a problem of unacceptably low 
productivity, other measures should be available to an agency. Under existing 
MSPB caselaw, agencies have to fully document a statistical case to succeed in 
showing that low productivity is cause for discipline or dismissal under section 
7521. If, however, agencies follow Recommendations 78-2 and 86-7 and 
develop (with AU participation) appropriate norms and statistical records, the 
MSPB route should become more feasible. This is not to say that agency chief 
AUs and office managers should rush to bring actions against less-than- 
average producers. Obviously, some judges produce on average less than 
others. '24<i Moreover, other techniques such as counseling, training, and 
opportunities to improve performance should to be tried before filing charges 
before the MSPB. Nevertheless, the possibility of filing charges should be a 
real one. 

5. A Proposed Approach 

To eliminate any confusion about agencies' ability to develop, maintain and 
enforce these properly arrived at standards, the flat statutory exemption of 
AUs from the performance appraisal system and the broader OPM regulation 



^"^^See 1992 AU survey question #23 (Appendix IV A). Of those responding, 17% labeled 
this a "very" serious problem; 56% a "somewhat" serious problem. 

^ See Note, AU Evaluation, supra note at 1 198 at 618, pointing out the danger of allowing 
production quotas to keep ratcheting upwards: "The purpose of the quota is to encourage 
underproducers to catch up with the average. Then the average goes up. However, if the quota 
is based on the average, the quota goes up. Standards simply edge higher and higher." 



1024 Verkuil, Gifford, Koch, Pierce, and Lubbers 



prohibiting agencies from "rating" the performance of AUs should be 
modified. 

One might legitimately suggest that both provisions simply be repealed, 
especially since the new salary statute for AUs effectively ensures compliance 
with the APA's injunction that agency ratings or recommendations not 
influence OPM's setting of AU pay. Indeed, given the security of AU pay, 
one possible approach to performance evaluation of AUs would be to maintain 
the section 7521 procedure for misconduct or insubordination cases only and 
simply subject AUs to either the SES or general employee personnel appraisal 
system. After all, both systems are replete with provisions that ensure that the 
evaluations and resulting adverse actions are fair.'^^ Moreover, the rate of 
removals under either system is extremely low. Of 2.1 million federal 
employees (not including postal workers) 425 were removed in fiscal year 
1989 and 403 in fiscal year 1990 on the basis of performance.'^ From an 
SES workforce of about 8,000, four were dismissed in fiscal year 1988, five in 
fiscal year 1989, three in fiscal year 1990, and zero in fiscal year 199 1.'^^^ 
The newly installed recertification process for SES members has led to nine 
removals or demotions. '^^ This level of annual removal for performance of 
about 1 in 5,000 general workers and 1 in 2,500 SES members should hardly 
occasion great concern among AUs~especially if any application of such a 
system to AUs made it clear that evaluation would not infringe upon the 
judge's decisional independence.'^' 



^^^See Note, AU Evaluation, supra note 1198 at 623, n. 207, pointing to the following 
provisions: 5 U.S.C. §4302(b)(6) (1988) (no employee can be disciplined for poor performance 
without being given an opportunity to improve); id. §4303 (b)(1)(A) (an employee subject to 
removal is entitled to 30 days advance notice identifying specific instances of unacceptable 
performance); id. §4303 (c)(2)(A) (a demotion or removal may be based only on unacceptable 
performance during the immediately preceding year); id. §4303 (c)(2)(D) (an employee whose 
performance improves is entitled to have his or her record cleared of any reference to the 
performance based adverse action); id. §4301(3) (defining unacceptable performance as the 
failure to meet established standards). The SES performance appraisal system, 5 U.S.C. §§4311- 
4315, contains similar safeguards, including review by peers (performance review boards) and 
guarantee of GS-15 job if removed. 

'^^Source: Oflfice of Workforce Information, Personnel Systems and Oversight Group, 
0PM (March 1992). 

'^^Source: Office of Executive Management Policy, Human Resources Develoopment 
Group, OPM (March 1992). 

^"^'Big Bosses Pass Test' (by Mike Causey), Washington Post, March 20, 1992 at C.2. 

*^'5tftf, e.g.. Attorney General Levi's Opinion that an agency could not reprimand an AU 
for issuing an opinion in a case notwiihsUnding the agency's commitment to a federal judge that 
it withhold administrative action. The Opinion characterized the AUs action as an exercise of 
"judgment, which in the context, was essentially judicial." 43 Op. Att'y Gen. 1, 6 (1977). 



The Federal Administrative Judiciary 1 025 



Nor is it difficult to conceive of a structural system to honor separation-of- 
fimctions concerns and provide peer review in such evaluations. Most 
agencies have (or could have) chief AUs, who could perform this task well. 
Large-volume agencies have deputy chiefs or regional chiefs. While these 
chiefs, like other top managers in agencies, are appointed to the position by the 
agency, '^2 it has been recognized that their position (and the increased 
compensation that comes with it) rests in the individual's "substantial 
administrative and managerial responsibilities," not on policy expertise. '^^ 
Thus, it is unlikely that agencies would exert improper pressures on chief AUs 
to use improper criteria in effectuating a performance appraisal system. 
Nevertheless, if chief AUs were given the lead role in this area, it would 
likely be wise to increase their insulation from improper pressures from agency 
policymakers by making their appointment and removal subject to review by 
OPM. This would permit chief AUs to engage in the normal supervisory and 
managerial responsibilities without fear that their actions might be based on 
impermissible pressure or motives. Chief AUs should, however, be required 
to submit their performance appraisal system (including any productivity 
guidelines) to OPM for its review and certification. This would ensure action 
by the chief AU while also removing the agency (qua agency) from this 
evaluation process. Indeed, if this system were put in place, section 7521 
should probably be amended to have the chief AU, in the name of OPM, 
bring the charges against wayward AUs before the MSPB.'^ Finally, 
although performance-based monetary bonuses may be problematic, there is no 
reason the chief AU could not be authorized to reconmiend nonmonetary 
awards or commendations to outstanding AUs. 

The success of this approach to performance appraisal depends heavily on 
participation of AUs in the development of performance criteria and 
guidelines. In some situations, peer review of problem performers can be 
useful as well. Several agencies have already instituted peer review for certain 
types of complaints or allegations against AUs. The Department of Labor's 
Office of Administrative Law Judges has established peer review procedures 



^'^^See Rosenblum, supra note 1227 at 613-14, citing Attorney General Katzenbach's 
opinion that agencies may promote AUs to Chief ALJs without Civil Service Commission 
participation, 42 Op. Att'y Gen. 289 (1964). 

'^^It might be argued that it is unnecessary to institute a somewhat cumbersome and possibly 
disruptive system of annual performance appraisal of all AUs. Arguably it would be sufficient to 
amend the exerr^tion from performance appraisal to allow agencies to undertake them on an 
individual basis as a prelude to bringing a charge under section 7521. Chief AUs would then 
await "probable cause" before undertaking a written appraisal of an AUs performance-giving the 
judge a chance to respond to the appraisal and improve his or her performance. This would 
simply add to the notice, fairness, and documentation of ensuing action at the MSPB. 



1026 Verkuil, Gifford, Koch, Pierce, and Lubbers 



for handling complaints of misconduct or disability on the part of AUs.'"'' It 
set up an advisory committee for an informal inquiry made up of three 
members selected by the Chief AU from a panel of six judges elected by the 
DOL AUs. Regional advisory committees are also provided for. Although 
not used often,'*' this sort of procedure is a good model for other large AU 
corps, and the Social Security Administration, which has recently had to 
defend several class action lawsuits seeking injunctive relief against certain 
allegedly biased AUs,'*' has instituted a similar procedure modeled on 
procedures already in effect for peer review of allegations of misconduct by 
federal Article III judges.'^ 

Obviously, agencies with a smaller number of judges will find it more 
difficult to set up peer review panels (although the SES performance review 
board system copes with this by rotating peers from among the smaller 
agencies). On the other hand, agency chief judges in those agencies will have 
a closer relationship with individual AUs, thus making many of the 
managerial tasks easier. Moreover, the promulgation of a model code of 



^'^See 46 Fed. Reg. 28050 (May 22, 1981), amended at 46 Fed. Reg. 30843 (July 5, 1983) 
and 52 Fed. Reg. 32973 (September 1, 1987). 

^^See Note, AU Evaluation, supra note 1198 at 625, n.219 (reporting it has been invoked 
twice as of 1985). According to the Deputy Chief AU, it has not been invoked in the past 5 
years, although it has been "suggested* several times. Conversation with Department of Labor 
Deputy Chief AU John Vittone (February 1992). 

'^'For a description of these cases, see "Judicial Independence of Administrative Law Judges 
at the Social Security Administration,' Hearings before the House Subcomm. on Social Security, 
Committee on Ways and Means, 101st Cong., 2nd Sess., Serial 101-117 (June 13, 1990) at p. 72 
(Statement of Jonathan M. Stein, General Counsel, Community Legal Services, Inc., 
Philadelphia, Pa.) These allegations have led to a GAO investigation, which concluded that there 
had been a statistically significant bias against black applicants in AU decisions. The GAO 
study, entitled "Social Security: Racial Difference in Disability Decisions Warrant Further 
Investigation," discloses that over 109r of SSA AUs had allowance rates that disfavored black 
claimants by nwrc than 25%. GAO^HRD-92-56 (April 1992). See also "Benefits Are Refused 
More Often to Disabled Blacks, Study Finds," N.Y. Times, May 11, 1992, A-1. SSA 
Conrunissioner King raised concerns about GAO's methodology, but also pledged to vigorously 
deal with the problems raised by the report. See letter from Commissioner King to Lawrence J. 
Thompson, GAO, February 4, 1992, reprinted in GAO report at 74-76. 

'*^"Social Security Administration Procedures Concerning Allegations of Bias or Misconduct 
by Administrative Law Judges," 57 Fed. Reg. 49186 (October 30, 1992). See also, "Proposed 
Amended Rules for the Processing of Certificates That a Judicial Officer Might Have Engaged in 
Impeachable Conduct," Judicial Conference of the United Slates, 56 Fed. Reg. 66644 (December 
24, 1991). 



The Federal Administrative Judiciary 1 027 



judicial conduct for ALJs'^^ will provide significant assistance in misconduct or 
complaint cases. 

Finally, there is one aspect of the MSPB process for hearing "for cause" 
cases that merits reform. The Board at present, and for over a decade, has 
employed only a single administrative law judge to preside over these cases 
(and a few other low-volume categories of cases). This places that individual 
AU in the uncomfortable position of repeatedly having to judge his peers. 
Nor are recusal motions a realistic possiblity. It would be far better, given the 
nature of these cases, for MSPB to expand its pool of available judges to hear 
such cases. 

It has been suggested that MSPB could have these cases heard by a panel of 
three ALJs, with two of them being employed by agencies other than the 
MSPB or the prosecuting agency, but assigned in rotation from a list kept by 
OPM.i^^ Multijudge peer review panels are common in both the states and 
federal sytem'*^ and could easily be incorporated into the MSPB procedure. '^^ 

6. Evaluation of Judicial Performance at the State and Federal 
Level 

Evaluation of judicial performance is hardly a new or radical idea. 
Evaluation programs exist at both the federal and state court levels, and 
administrative law judges in a large number of states are also subject to 
performance evaluation. 

The American Bar Association has issued Guidelines concerning the 
proper role of such evaluations, and that supply specific performance measures 
to be applied. '^^ The Guidelines recognize that such programs should be 
"structured and implemented so as not to impair the independence of the 
judiciary, "'^^ but they also encourage use of performance evaluation for "self- 



'^^Model Code of Judicial Conduct For Federal Administrative Law Judges, endorsed by the 
National Conference of the Administrative Law Judges, Judicial Administration Division, 
American Bar Association (February, 1989). 

'^'*5^e Timony, Displinary Proceedings Against Federal Administrative Law Judges, 6 W. N. 
Eng. L. Rev. 807, 820 (1984). 

'^^/J. Citing California's commission system in particular. 

'^^Indeed, this would not require, a statutory amendment, since the APA permits agencies to 
use "one or more" ALJs (5 USC §556 (b)(3)) and OPM administers an AU loan program under 
5 USC §3344. If the many MSPB AJs were converted to ALJs, the need for loans would be 
eliminated. 

'^^American Bar Association Gltidelines for the Evaluation of Judicial Performance, 
Special Committee on Evaluation of Judicial Performance, August 1985. 

^^^Id. Guideline 1-2 (p. ix). 



1028 Verkuil, Gifford, Koch, Pierce, and Lubbers 



"improved design and content of continuing judicial evaluation programs," and 
"retention or continuation of judges in office. "'^65 

The ABA Guidelines provide the following "performance measures" r'^** 

(1) Integrity — avoidance of impropriety and appearance of 
impropriety, freedom from bias, impartiality. 

(2) Knowledge and understanding of the law — legally sound 
decisions, knowledge of substantive, procedural and evidentiary law 
of the jurisdiction, proper application of judicial precedent. 

(3) Communication skills ~ clarity of bench rulings and other oral 
communications, quality of written opinions, sensitivity to impact of 
demeanor and other non-verbal communications. 

(4) Preparation, attentiveness and control over proceedings — 
courtesy to all parties, willingness to allow legally interested persons 
to be heard unless precluded by law. 

(5) Managerial skills — devoting appropriate time to pending matters, 
discharging administrative responsibilities diligently. 

(6) Punctuality — prompt disposition of pending matters and meeting 
commitments of time according to rules of court. 

(7) Service to the profession ~ attendance at and participation in 
continuing legal education, ensure that the court is serving the public 
to the best of its ability. 

(8) Effectiveness in working with other judges ~ extending ideas and 
opinions when on multi-judge panel, soundly critiquing work of 
colleagues. 

Whether or not they follow the ABA Guidelines, judicial evaluation 
programs are increasingly being used at the state level. According to the latest 
survey of state activity, "six states and the courts of the Navajo Nation operate 
judicial evaluation programs, and eight states are actively developing a 
program or are close to implementing one."'^^ Among the stated purposes of 



^'^^^Id. Guideline 1-1 (p. ix). 

^'^^^Id. Guidelines 3-1 to 3-6 (p. x -xii). 

^^ Keilitz and McBride, Judicial Performance Evaluation Comes of Age, State Court J., 
Winter 1992, 4-5. The six states with established programs are AK, CO, CT, IL, NJ and UT. 
The eight sutes developing such programs are AZ, DE, HA, MD, MN, NM, ND and WA. See 
also, Feigenbaum, Statewide Judicial Performance Evaluation: How New Jersey Judges the 
Judges, Innovations (National Center for State Courts), 1984. 



The Federal Administrative Judiciary 1 029 



some of these programs is to generate information to be used in judicial 
retention elections or in reappointment decisions. 

The federal judiciary has also shown interest in judicial evaluation. 
Under the auspices of a Judicial Conference Subcommittee on Judicial 
Evaluation, the U.S. District Court for the Central District of Illinois recently 
completed a pilot judicial evaluation project involving the voluntary 
participation of judges and attorneys. '^^ The report on this pilot project states 
that "the response of participants was overwhelmingly positive. "'2<» jn 
addition, the Seventh, Eighth and Ninth Circuit Courts of Appeals have used 
performance evaluation in making retention decisions for bankruptcy judges 
and magistrates.'^ Finally, it is also worth noting that Congress has 
expressed its concerns about current arrangements relating to discipline and 
removal of federal judges by creating the blue-ribbon National Commission on 
Judicial Discipline and Removal, scheduled to complete its work in 1993. '^'^ 

Within the state administrative judiciary, there is considerable use of 
performance evaluation. All but 4 of the 18 states (plus New York City) that 
have adopted the "central panel" model of agency adjudication (whereby some 
or all state AUs are located in a central organization to be assigned to agency 
cases on an as-needed basis) '^^ use at least the normal type of civil service 
evaluation. Eight states (plus New York City) submitted to the Conference 
specially tailored performance appraisal forms for their judges and one state 
(Maryland) submitted its proposed plan.'^^ 

Perhaps the most sophisticated program is New Jersey's. '^^ The New 
Jersey Office of Administrative Law has developed an evaluation system 
designed to reflect performance of AUs, to indicate the need for improvement. 



*''"°Federal Judicial Center, The Judicial Evaluation Pilot Project of the Judicial Conference 
Committee on the Judicial Branch, August 1991 (by Darlene R. Davis). 
126 V at 1. 

12*^1 Authorized by Pub. L. No. 101-650 (TiUe IV, Subtitle II), 104 Stat. 5124. 

1272The 18 states are CA, CO, FL, HA, lA, MD, MA, MN, MO, NJ, NC, ND, PA, TN, 
TX, WA, WI and WY. Information supplied by Tracey Brown, Editor, The Central Panel, 
Lutherville, MD (301) 321-3993. 

*^^^e eight states submitting appraisal forms were CO, FL, MN, NJ, ND, TN, WA and 
WI. 

'^^*rhe following description is derived from a telephone interview with Randye E. Bloom, 
Assistant Director Judicial Evaluation and Education, New Jersey Office of Administrative Law 
(July 1992) (Confirming written materials on file at Administrative Conference.) 



1030 Verkuil, Gifford, Koch, Pierce, and Lubbers 



and also to assist in the Governor's reappointment decisions.'^ The system 
focuses on three areas of judicial performance: competence, conduct, and 
productivity, and uses a combination of evaluation techniques for assessing an 
AU's performance. 

The evaluation of an ALJ's competence in New Jersey is measured 
primarily on the judge's written decisions which are reviewed by the Director. 
Decisions reflective of the judge's major subject matter are randomly selected 
and are reviewed for factors such as structure, and substance, including: 
clarity, proper differentiation of significant and insignificant facts, proper 
consideration of statutory, regulatory, and constitutional principles. 

The conduct of an AU is assessed primarily through the use of case- 
specific questionnaires to counsel and parties on a random basis. There are 
separate questionnaires for attorneys, pro se litigants, other litigants, and state 
agencies. The attorney questionnaires are quite technical and relate to 
substantive legal issues as well as settlement skills. The party questionnaires 
are less technical and relate more to the judge's conduct of the hearing and 
ability to explain the process to the litigant. The agency's questionnaire is 
mainly concerned with the judge's written decision but also includes topics 
such as the judge's compliance with timeframes. 

The third area of evaluation is concerned with how the ALJ handles his 
or her caseload. Computers are used to generate reports which present average 
time per case, average time from the judge's receipt of the file to the issuance 
of a decision, and other administrative timing matters. After all of the above 
data is gathered, each judge is afforded an opportunity to review the 
information collected. The Office formerly used four performance levels 
(marginal, acceptable, commendable and distinguished), but eliminated these 
ratings when it stopped using evaluations for salary review. Now the AU is 
simply provided with the summary results of the evaluation. 

In general the evaluation criteria in the state central panels concentrate on 
three main areas: (1) the ability to preside over hearings both in terms of 
conducting orderly, speedy hearings and in terms applying principles of law 
and appropriate procedures, (2) adequacy of decisionmaking and (3) 



'^^ew Jersey AUs are initially appointed by the Governor and confirmed by the Senate for 
a 1-year term. After that year the Governor may reappoint (without Senate confirmation) for 4 
more years. Subsequent reappointments are for 5-year terms and require Senate confirmation. 
The practice of the Office of Administrative Law is to conduct evaluations every year of the first 
5 years, in only the years 4 and 5 of the second term and year 5 of the third term. When 
reappointment decisions are looming, the Director sends a confidential letter to the Governor 
about the incumbent based on the evaluations undertaken up to that point. Id. 



The Federai. Administrative Judiciary 1 03 1 



interpersonal relations with staff and caseload management. In most states, the 
chief AU or panel director does the evaluating (although Idaho, Oregon and 
Washington have a unique arrangement of evaluating each other's ALJs)J276 
In some states, the purpose of the evaluation (beyond meeting usual civil 
service requirements) is not explained, although several states explicitly use 
such evaluations for counseling, training, reassignment, advancement, and 
even salary adjustments. 

Finally, as noted earlier in this report, federal AJs are not exempt from 
performance appraisal and several important groups of AJs are subject to 
performance ratings. Among the actual appraisal forms on file at the 
Conference are those applicable to AJs at MSPB, DISCR, the Trademark Trial 
and Appeal Board, and the DHHS Departmental Appeal Board. 

7. Conclusion 

In summary, although the Administrative Procedure Act's procedure for 
disciplining or removing AUs for cause after hearing by the MSPB has 
worked relatively well in misconduct or insubordination cases (except for the 
overreliance on the single AU at MSPB), it has not provided a realistic forum 
for agency dissatisfaction with low-producing AUs. In misconduct and 
insubordination cases, or where a judge may be disabled, agencies with a large 
corps of AUs should establish peer review panels for handling complaints and 
possibly triggering MSPB actions. To assist agencies in holding AUs 
accountable for unduly low productivity, the statutory and regulatory 
impediments to performance appraisals and ratings should be either eliminated 
or at least modified to clarify that chief AUs are responsible for management 
of AU performance. Such responsibilities should include developing (with the 
input of AUs and advisory groups) appropriate case-processing guidelines; 
collecting, maintaining and disseminating data on individual AU performance 
in light of those guidelines; conducting performance appraisals of AUs at 
appropriate intervals; undertaking counseling, training or other ameliorative 
activities; and, where good cause exists, bringing charges against individual 
AUs before the MSPB. Chief AUs, when assigned these specific managerial 
responsibilities, should also be granted additional independence from agency 
control by making their appointment and removal subject to OPM review. 
Establishment of such a system would bring the federal administrative 
judiciary into the mainstream of judicial administration as it is now practiced 
in many leading jurisdictions throughout the nation. 



'27frpg|gphone interview with David R. LaRose, Chief Administrative Law Judge, Slate of 
Washington Office of Administrative Hearings (July 1992). 



1032 Verkuil, Gifford, Koch, Pierce, and Lubbers 



VII . Effects of ALJ and Non-ALJ Decisions 



A. The APA Model 

In the absence of judicial or agency review, an adjudicatory officer's initial 
decision resolves a dispute on a final basis. APA §557'^^ provides for this 
effect. "When the presiding employee makes an initial decision, that decision 
then becomes the decision of the agency without further proceedings unless 
there is an appeal to, or review on motion of, the agency within the time 
provided by rule." In some agencies, very few initial decisions become final 
in this manner because most decisions are reviewed by the agency. In other 
agencies, particularly those with large caseloads, a high proportion of initial 
decisions become final in this manner because no party appeals and the agency 
lacks the resources to review all initial decisions on its own motion. At many 
benefit agencies, most initial decisions that grant benefits become final, while 
most initial decisions that deny benefits are reviewed. This disparity exists 
because the only party who can appeal is the applicant for benefits, and 
applicants appeal only when they lose. 

If an initial decision is reviewed by the agency but not by a court, the 
officer's initial decision has no effect at all except to the extent that the agency 
chooses to adopt it or to agree with some or all of its findings and conclusions. 
This effect results from another sentence in APA §557.'^^ "On appeal from or 
review of the initial decision, the agency has all the powers which it would 
have in making the initial decision except as it may limit the issues on notice 
or by rule. " Thus, absent a rule through which the agency voluntarily limits 
the scope of its review, the agency can engage in plenary review and 
substitution of its judgment for that of the AU. The same is even more true 
when the agency reviews the decision of a non-AU, since not even the 
constraints of the APA would normally bind the agency in such a case. 

If an initial decision is subject both to agency review and to judicial 
review, and the agency's resolution of the issues differs from the resolution in 
the initial decision, the effect of the initial decision is more complicated to 
describe. Generally, it is the agency's decision that is entitled to deference 
from a reviewing court, and the initial decision of the adjudicatory officer is 
merely part of the record on which the court bases its decision on review. 



'2^5 use §557. 
'2^5 use §557. 



The Federal Administrative Judiciary 1033 



Underneath that seemingly simple rule lurks a great deal of complicated case 
law, however. 

An initial decision, or an agency decision on review of an initial decision, 
is based on a series of findings and conclusions that can fall into three 
categories: statutory interpretation, policy, and fact. Each category is treated 
in a somewhat different manner by a reviewing court. Moreover, courts 
sometimes create subcategories that are treated differently (e.g., primary facts 
versus secondary inferences). The categories and subcategories are often 
difficult to distinguish, and the thousands of court decisions reflect 
considerable variation among judges. 

1. Statutory Interpretation 

The starting point in understanding judicial review of agency 
interpretations of statutory language is the two-step test the Supreme Court 
established in Chevron v. NRDC:^^^ 

First, always, is the question whether Congress has directly 
spoken to the precise question at issue. If the intent of 
Congress is clear, that is the end of the matter; for the court, 
as well as the agency, must give effect to the unambiguously 
expressed intent of Congress. If, however, the court 
determines Congress has not directly addressed the precise 
question at issue, the court does not simply impose its own 
construction on the statute, as would be necessary in the 
absence of an administrative interpretation. Rather, if the 
statute is silent or ambiguous with respect to the specific 
issue, the question for the court is whether the agency's 
answer is based on a permissible construction of the statute. 

As the Court reconceptualized the process of giving meaning to language in 
agency-administered statutes in Chevron y only step one of the test involves 
statutory interpretation in the traditional sense of the term. Courts apply step 
one independent of any reasoning or conclusion in either the initial decision or 
the agency decision. Increasingly, courts decide whether Congress "has 
directly addressed the precise question at issue" by reference to the "plain 
meaning rule" (e.g., Webster defines the statutory term to mean...").'^ In 
some cases, however, courts supplement their effort to determine the meaning 
of language by reference to the dictionary with resort to other interpretive tools 



'279467 U.S. 837, 842-43 (1984). 

^^^See Schauer, Statutory Construction and the Coordination Function of Plain Meaning, 
1990 Sup. Ct. Rev. 231. 



1034 Verkuil, Gifford, Koch, Pierce, and Lubbers 



(e.g., legislative history, policy analysis, canons of statutory construction, 
inferences drawn from the stated purposes of a statute, or inferences drawn 
from the position of the disputed language in the structure of the statute). 
Whatever combination of tools a court might use to apply step one of Chevron^ 
it does not defer either to the agency or to the initial decision of the 
adjudicatory officer. If either of these documents plays any role in a court's 
application of step one, it is a role limited to the inherent persuasive power of 
the reasoning in one of the two documents. 

Once a court has applied step one of Chevron, the process of statutory 
interpretation is over. Step two does not ask the question: What does this 
language mean? It asks a very different question: Given that the language of 
the statute is sufficiently malleable to support more than one potential agency 
provided meaning, is the meaning the agency has given it in this case 
permissible? That question involves judicial review of agency policymaking, 
rather than judicial determination of issues of law. 

2. Policy Decisions 

Courts are highly deferential to agency resolutions of policy issues. The 
leading case on judicial review of agency policy decisions is Baltimore Gas & 
Electric Co, v. NEDC:'^' 

Resolution of these fundamental policy issues lies... with 
Congress and the agencies to which Congress has delegated 
authority.... 

A reviewing court must remember that the commission is 
making predictions, within its area of special expertise, at the 
frontiers of science. When examining this kind of scientific 
determination, as opposed to simple findings of fact, a court 
must be at its most deferential. 

Courts accord little deference to agency adjudicatory officers' resolution of 
policy issues because agencies have significant comparative advantages both 
with respect to political accountability and with respect to expertise. See 
Chapter VI(C)(1). The problem here lies, however, in the frequent difficulty 
of distinguishing between policy issues and factual issues. The circuit court 
opinion reversed in Baltimore Gas & Elearic illustrates the tendency of many 
courts to mischaracterize a policy issue as an issue of fact. The circuit court 



'2«»462 U.S. 87, 97, 103 (1983). See also FCC v. WNCN Listeners Guild, 450 U.S. 582, 
596 (1981) (court cannot interfere with an agency's "forecast of the direction in which the future 
public interest lies"). 



The Federal Administrative Judiciary 1035 



had reversed the agency because it thought it was reviewing an issue of fact for 
which the agency had insufficient evidentiary support. The Supreme Court 
reversed the circuit court because it concluded that the dispute was over policy 
rather than facts. 

3. Findings of Fact 

APA §706(2)(E)'^ provides that agency findings of fact must be affirmed 
if they are supported by "substantial evidence." The substantial evidence test 
had its genesis in appellate court review of jury verdicts. During the 19th 
century, the practice developed of reviewing jury verdicts less intensively than 
findings of judges without juries, and early in the 20th century the difference 
was crystallized and extended to judicial review of agency findings. '^^ 

The Supreme Court has often lumped together the review of jury verdicts 
and of administrative findings. "Substantial evidence is more than a scintilla, 
and must do more than create a suspicion of the existence of the fact to be 
established. 'It means such relevant evidence as a reasonable mind might 
accept as adequate to support a conclusion, '...and it must be enough to justify, 
if the trial were to a jury, a refusal to direct a verdict when the conclusion 
sought to be drawn from it is one of fact for the jury. "'^^ 

In 1946 Congress incorporated the substantial evidence test in the 
Administrative Procedure Act and made the test applicable to all agency 
findings adopted in formal adjudication or formal rulemaking. '^^ The test has 
not changed in most resp)ects over the course of the century in which it has 
been applied to findings by juries and by agencies. 

The Court announced an important clarification of the meaning of the 
substantial evidence test shortly after passage of the APA, in Universal 
Camera Corp. v. NLRBJ^^ "The substantiality of evidence must take into 
account whatever in the record fairly detracts from its weight. This is clearly 
the significance of the requirement... [in APA §706] that courts consider the 
whole record." Thus, the evidence in support of an agency finding must be 
sufficient to support the conclusion of a reasonable person after considering all 
the evidence in the record as a whole, not just the evidence that is consistent 
with the agency's finding. The helpful clarification in Universal Camera 



'2825 use §706(2)(E). 

^^^See Stem, Review of Findings of Administrators, Judges and Juries: A Comparative 
Analysis, 58 Harv. L. Rev. 70 (1944). 

'2*4NLRB v. Columbian E. & S. Co., 306 U.S. 292, 300 (1939), quoting from Consolidated 
Edison v. NLRB, 305 U.S. 197, 229 (1938). 

^^5 use §706(2)(E). 

'2«<b40U.S.474, 488 (1951). 



1036 Verkuil, Gifford, Koch, Pierce, and Lubbers 



precludes affirmance of an agency finding in the extreme case where the 
evidence that detracts from the finding is dramatically disproportionate to the 
evidence that supports the finding (e.g., a finding based on the testimony of 
one obviously biased witness that is contradicted by the testimony of multiple 
unbiased witnesses or powerful documentary and circumstantial evidence). 

The substantial evidence test remains extremely deferential to agencies after 
the Universal Camera clarification. The Court explained the nature of the test 
and its policy underpinnings in Console v. Federal Maritime Commission .^"^"^ 
The Court referred to its 1938 and 1939 opinions in Consolidated Edison and 
Columbian E & S and said: 

Although these two cases were decided before the enactment 
of the Administrative Procedure Act, they are considered 
authoritative in defining the words 'substantial evidence' as 
used in the Act.... This is something less than the weight of 
the evidence, and the possibility of drawing two inconsistent 
conclusions from the evidence does not prevent an 
administrative agency's finding from being supported by 
substantial evidence.... Congress was very deliberate in 
adopting this standard of review. It frees the reviewing 
courts of the time-consuming and difficult task of weighing 
the evidence, it gives proper respect to the expertise of the 
administrative tribunal and it helps promote the uniform 
application of the statute. 

Courts sometimes confuse deference to agency findings with deference to 
findings by agency AUs. If an agency and an AU disagree with respect to a 
finding of fact, it is the agency's finding that is entitled to deference on 
judicial review. The AU's finding is only a part of the record to be 
considered by a reviewing court in determining whether the agency's finding is 
supported by substantial evidence in the record as a whole. A finding by an 
AU is particularly influential with a reviewing court, however, when the 
finding is a primary or testimonial inference that is based largely on the 
demeanor of witnesses, since the AU was actually present at the time the 
testimony was given. The Supreme Court explained this relationship between 
AU findings and agency findings in Universal Camera,^'^ but many lower 
court opinions continue to reflect confusion and misunderstanding of the 
relationship. 

Agencies often have comparative advantages over adjudicatory officers 
with respect to resolution of factual issues. Those advantages have several 



'28^383 U.S. 607, 619-21 (1966). 
'2«« 340 U.S. 474, 492-497. 



The Federal Administrative Judiciary 1037 



different sources. First, the agency's superior expertise in the field may give it 
an advantage in some circumstances (e.g., how well does witness X's 
testimony mesh with the general principles of engineering, economics, or 
medicine applicable to this dispute?). Second, the agency is always better 
positioned to ensure interdecisional consistency (e.g., we will give greater 
weight to one type of evidence versus another type of evidence in this case 
because we have been doing so in all other cases). Third, sometimes the issue 
of fact is more appropriately considered an issue of policy (e.g., we reject the 
opinion evidence of witness X because it is based on one of two competing 
theories, and we have made a policy decision to base our actions on the other 
theory). 

A 1986 opinion illustrates the manner in which some courts continue to 
misunderstand the relationship between AU findings and agency findings 
when they apply the substantial evidence test to findings of legislative facts. 
In Office of Consumers' Counsel v. FERC,^^'^ the court devoted many pages to 
a detailed comparison of AU findings and agency findings. The court 
concluded that the AU was right and the agency was wrong with respect to 
each of the findings on which they differed. Each finding involved the issue 
of whether a gas pipeline "abused" its customers by following particular 
patterns of contracting to purchase gas. The approach taken in the opinion is 
erroneous in two respects. First, throughout the opinion the court's discussion 
places the AU's findings and the agency's findings on an equal footing. The 
court then undertakes the role of determining which set of findings is better. 
That approach is inappropriate with respect to any finding of fact. If the 
evidence can support either of two findings, the court must uphold the 
agency's findings. Second, the disputed fmdings did not involve adjudicative 
facts. There was no dispute concerning the firm's contracting practices. The 
only disputes concerned the most appropriate characterization of those 
practices (e.g., to what extent should a firm take the risk of having to pay 
excessive prices in the short term to avoid the risk of experiencing a supply 
shortage in the long term). That is a policy issue uniquely within the agency's 
expertise. AU findings inconsistent with an agency's findings should have 
little, if any, weight with respect to a "factual" issue of this type. Office of 
Consumers' Counsel is illustrative of the tendency of many lower courts to 
misunderstand this important principle. 

The case law on the effect of adjudicatory officers' findings of facts when 
they differ with agency findings is complicated and frequently inconsistent. 
As a result, an agency cannot be confident that it can maintain control over the 
policy components of adjudicatory decisions and maintain consistency in its 
pattern of adjudicatory decisions even if the agency were to review each initial 

'28^83 F.2d 206 (D.C. Cir. 1986). 



1038 Verkuil, Gifford, Koch, Pierce, and Lubbers 



decision. Of course, these problems are much greater in agencies with 
caseloads so large that the agency can review only a modest proportion of the 
decisions of its adjudicatory officers. 



B. Departures from the APA Model 

The APA allocates adjudicatory responsibility among decisionmakers in 
accordance with three principles: (1) the AU presides at the hearing and 
issues an initial decision; (2) the agency has plenary power to review the initial 
decision and to substitute its judgment for that of the AU; and, (3) reviewing 
courts defer to the agency rather than to the AU. In the most common 
institutional arrangement, each AU works for a single agency, and that agency 
has responsibility for all aspects of implementation of one or more statutes— 
policymaking, investigation, enforcement, and adjudication. Within that 
institutional structure, AUs are assured a high degree of independence as a 
result of the statutory limits on the agency's power described in Chapter VI 
(B). Congress, however, has broad discretion to allocate adjudicatory 
responsibilities and structure the institutional environment in which 
adjudicatory officers operate. 

1. Allocation of Greater Decisionmaking Power to ALJs 

Decisionmaking could be allocated to give adjudicatory officers greater 
responsibility and authority. Congress has created such a structure in several 
contexts (e.g., awards of compensation for injuries to longshoremen and 
harborworkers, awards of compensation to coal miners that contract black lung 
disease and appeals of agency decisions disqualifying food stores from 
participating in the Food Stamp program). The only constraint on Congress' 
discretion in this respect has its source in the Appointments Clause. 
Conferring on AU decisions a high degree of finality makes each AU either 
an "officer" or an "inferior officer."'^ If an "officer," the AU can only be 
appointed by the President; if an "inferior officer," the AU can also be 
appointed by a "head of department" or by a "court of law. " 

The Black Lung Benefits Act,'^' provides a good example of an agency 
adjudication system in which the initial decision of an adjudicatory officer is 
given unusually powerful effects. The Department of Labor (DOL) has 
responsibility to adjudicate disputes between coal mine owners and coal mine 



'2«5«r<r Freytag v. Commissioner, 111 S.Cl. 2631 (1991); Silver v. Postal Service, 951 F.2d 
1033 (9th Cir. 1991). 

'^'30 use §§901-945. 



The Federal Administrative Judiciary 1 039 



employees concerning an employer's obligation to provide statutory 
compensation for lung diseases attributable to the work environment. The 
statute allocates decisionmaking responsibility among individuals and 
institutions within DOL. The Office of Workers' Compensation Programs 
(OWCP) in DOL has responsibility to issue all rules governing the 
adjudicatory program. A DOL ALJ makes the initial decision whether an 
employee is entitled to compensation. If either party is dissatisfied with the 
ALJ's decision, it can appeal to the Benefits Review Board (BRB), an appellate 
body that is part of DOL. BRB and OWCP often disagree. DOL ALJs are in 
an awkward position because they are bound by OWCP policies to the extent 
those policies are reflected in DOL's elaborate rules, yet their decisions are 
reviewed by BRB. DOL ALJs sometimes agree with OWCP, sometimes agree 
with BRB, and sometimes take a third position inconsistent both with OWCP 
and with BRB. 

The statute confers on BRB a review power much more limited than the 
review power of an agency acting subject to APA §557. BRB can reverse and 
remand an ALJ's initial decision only if that decision is not "in accordance 
with the law" or if it is based on a finding of fact that is not supported by 
substantial evidence. Thus, BRB's relationship to AU decisions is analogous 
to a reviewing court's relationship to agency decisions. BRB must affirm any 
AU finding that is supported by substantial evidence. 

If either party is dissatisfied with a BRB decision, it can obtain review in a 
federal circuit court. The court can reverse and remand any BRB decision that 
is not "in accordance with law. " Thus, on issues of law, the court can ignore 
BRB, the AU, and OWCP. On issues of fact, however, the court is required 
to uphold any finding made by an AU if that finding is supported by 
substantial evidence. On issues of policy and on issues related to interpretation 
of DOL rules, the court is required to defer to OWCP, the policymaking unit 
within DOL, rather than to the AU or BRB. 

This system of agency adjudication is fraught with uncertainties and 
conflicts concerning the appropriate roles and responsibilities of OWCP, AUs, 
BRB, and reviewing courts. As discussed in Chapter VI, the boundaries 
between questions of law, questions of fact, and questions of policy are often 
murky. The three types of issues merge and overlap in many contexts. By 
ignoring the overlaps and allocating decisionmaking responsibility among four 
independent institutions, the Black Lung Benefit program invites massive 
confiision and conflict. The circuit court decisions reflect the ambiguity, 
institutional conflict, and confusion that is inherent in such a complicated 
allocation of authority. Three recent opinions illustrate the problems courts 
encounter in reviewing decisionmaking in this system of adjudication. 



1040 Verkuil, Gifford, Koch, Pierce, and Lubbers 



In Pancake v. Amax Coal Co. ,'^ the court concluded that it was reviewing 
a finding of fact appropriate for resolution by the ALJ, subject to BRB review. 
In Greer v. OWC/*,'^ the court concluded that it was reviewing a conclusion 
of law appropriate for resolution by the court. In Davis v. OWCP,^"^ the court 
concluded that it was reviewing a policy dispute appropriate for resolution by 
OWCP. Each court was, in fact, dealing with the same type of issue. In each 
case, resolution of the dispute required consideration of the relationship among 
three variables: (1) the applicable language of the statute; (2) agency policy 
decisions reflected in regulations that create and define evidentiary 
presumptions; and (3) various forms of evidence tendered to prove a fact by 
triggering or rebutting an evidentiary presumption. 

Any of the three cases could be characterized plausibly as raising an issue 
of law, an issue of policy, or an issue of fact. Yet, because the statute 
allocates decisionmaking authority among four independent institutions 
depending on the characterization of the issue, the often arbitrary 
characterization of the issue is outcome determinative in many cases. 
Conferring a high degree of finality on AU findings of fact is virtually certain 
to create interdecisional inconsistency, costly and time consuming battles for 
institutional hegemony, and policymaking cacophony. It may also raise 
serious questions concerning the constitutionality of any selection process that 
does not confer a broad power to appoint on the President, a cabinet officer, or 
a court of law. Whatever its flaws, the APA model of adjudication provides a 
vastly superior institutional allocation of decisionmaking authority. 

2. The Split-Enforcement Model 

The adjudicatory function can be placed in an institution that is independent 
of the agency that makes and enforces rules and policies. This institutional 
structure can increase the extent to which adjudicatory decisionmaking is 
insulated from potential sources of agency bias. Congress has chosen this 
institutional structure in three significant contexts—mine safety and health, 
occupational safety and health, and transportation safety. In each case, one 
agency makes all rules and enforcement decisions, while a second independent 
agency makes all adjudicatory decisions. The Occupational Safety and Health 
Administration is the rulemaking agency; its enforcement cases are adjudicated 
at the Occupational Safety and Health Review Commission. Similiarly, the 
Mine Safety and Health Administration's cases are heard at the Federal Mine 
Safety and Health Review Commission. The National Transportation Safety 



'^858 F.2d 1250 (7th Cir. 1988). 
129394Q p 2d 88 (4th Cir. 1991). 



2^36 F.2d 1111 (10th Cir. 1991). 



The Federal Administrative Judiciary 1 04 1 



Board hears certain enforcement cases brought by the Federal Aviation 
Administration, the rulemaking agency. '^^ Various groups have for decades 
urged general adoption of this institutional structure for all agency 
adjudication. '^ 

The Conference conducted a study of this alternative in 1986. The study 
was unable to detect any improvement in adjudicatory decisionmaking 
attributable to the use of the independent adjudicating agency. It was able to 
document clear and significant costs and inefficiencies, however, attributable 
to lack of policy coordination, a high level of institutional conflict, frequent 
litigation between the two agencies, turf battles, and ambiguity with respect to 
the authority and responsibilities of the two agencies. '^^ The administration of 
the occupational safety and health program has been the subject of critical 
commentary by the Conference as well.'^ Adoption of the split-enforcement 
model was considered a contributing factor in this poor performance. 

3. The Corps Proposal 

Some critics of the federal agency adjudicatory system have proposed a 
major structural change in which all AUs are employed by a single entity, the 
ALJ Corps. '2^ Such a restructuring would have the potential advantage of 
further increasing AUs' independence. To the extent that even statutorily 
independent AUs develop some degree of dependence on the agency at which 
they preside, or some identification with the interests of that agency, this 
structural removal of AUs from the agency could reduce the potential bias or 
public perception of bias in agency adjudicatory decisionmaking. The Corps 

^"^See ACUS Recommendations 90-1 and 91-8, 1 CFR §§305.90-1, 91.8 (1991). 
Moreover, large executive departments like the Department of Transportation often centralize 
their ALJ administration so that, for example, DOT AUs hear civil penalty cases brought by 
departmental agencies like the FAA. This may be a sensible managerial decision. 

^^^See, e.g.. Ash Council Report on Selected Independent Regulatory Agencies (1971); 
President's Committee on Administrative Management (1937). 

^^^See ACUS Recommendation 86-4, "The Split Enforcement Model for Agency 
Adjudication," 1 CFR §305.86-4 (1992). See also Johnson, The Split Enforcement Model: 
Conclusions from OSHA and MSHA, 39 ADMIN. L. Rev. 315 (1987). The study found that the 
model worked somewhat better in the mine safety program due to its discreteness and the clarity 
of the legislative intent. 

^^^See ACUS Recommendations 87-1, "Priority Setting and Management of Rulemaking by 
the Occupational Safety and Health Administration," 1 CFR §305.87-1, and 87-10, "Regulation 
by the Occupational Safety and Health Administration," 1 CFR §305.87-10; Shapiro & 
McGarity, Reorienting OSHA: Regulatory Alternatives and Legislative Reform, 6 Yale J. on 
Reg. 1 (1989). 

'2^*rhe most r«cent bills are S. 826 and H.R. 3910. 102d Cong., 1st Sess. (1991). Both 
were reported to the floor, but neither was enacted. 



1042 Verkuil, Gifford, Koch, Pierce, and Lubbers 



would assign AUs to adjudications at different agencies based on its periodic 
assessments of changing relative workloads. The Corps would be divided into 
eight divisions in an effort to retain some degree of expertise. The Corps 
would have the power to establish uniform rules of procedure applicable to all 
agency adjudications. 

Proposals to establish an independent, centralized administrative 
adjudicatory body in the federal government have been made every year for 
over half a century. The arguments for and against such a radical restructuring 
of the administrative process have changed very little over the years. The 
literature on the subject is voluminous.'^** The choice presented is between 
continuation of the original model of administrative law and adoption of a new 
naodel that renders administrative adjudication virtually indistinguishable from 
judicial adjudication. 

Congress originally assigned adjudication of some types of disputes to 
Article I agencies rather than to Article III courts to further several goals: (1) 
to take advantage of specialized expertise; (2) to provide a less formal and less 
expensive means of resolving some types of disputes; (3) to attain a higher 
degree of interdecisional consistency in adjudicating disputes that arise in 
administering national regulatory and benefit programs; and, (4) to allow 
agencies to control the policy components of administrative adjudications. By 
adopting the Corps proposal, each of those goals would be abandoned in favor 
of an administrative adjudication system designed to replicate the Article III 
courts. 

Proponents of the Corps proposal recognize that it represents a rejection of 
the traditional administrative adjudication model in favor of a judicial 
adjudication model. Thus, for instance, they refer to the recent tendency of 
administrative proceedings to "become generally more formal,"'^' as a virtue 
that would be reinforced and extended by creation of an ALJ Corps. 



^^^See, e.g.y Hearing Before the Subcommittee on Administrative Law and Governmental 
relations of the Senate Committee on the Judiciary, 100th Cong., 2d Sess., Serial No. 57 (March 
17, 1988); Hearings Before the Subcommittee on Administrative Practice and Procedure of the 
Senate Committee on the Judiciary 98th Cong., 1st Sess., Serial No. J-98-45 (June 23 and 
September 20, 1983); The Central Panel System for Administrative Law Judges: A Survey of 
Seven States (M. Rich & W. Brucar eds. 1983); Nathanson, The Administrative Court Proposal, 
57 Va. L. Rev. 996 (1971); U.S. Commission on organization of the Executive Branch of 
Government, Legal Services and Procedure 84-88 (1955); Caldwell, A Federal Administrative 
Court, 84 U. Pa. L. Rev. 966 (1936); Reports of Special Committee on Administrative Law, 61 
A.B.A. Rep. 218-27, 232-33, 720-94 (1936); Reports of Special Committee on Administrative 
Law, 59 A.B.A. Rep. 148-53, 539-64 (1934). See generally K. Davis, Treatise on 
Administrative Law §§1:7-1:10 (2d ed. 1978). 

^^^See Simeone, The Function, Flexibility, and Future of United States Judges of the 
Executive Department, 44 Admin. L. Rev. 159, 173 (1992). 



The Federal Administrative Judiciary 1 043 



Establishment of an AU Corps undoubtedly would have this effect. The 
uniform rules of procedure prescribed by the Corps would come to resemble 
the highly formal rules that govern trials in Article III courts. We do not view 
that as a virtue, however, because it would abandon the traditional goal of 
providing a less formal and less expensive means of resolving specialized 
classes of disputes with the government. Over time, the cost of administrative 
adjudication would move ever closer to the cost of judicial adjudication. The 
potential for increased costs attributable to adoption of the formal, judicial 
model of adjudication is enormous. Use of the judicial model of adjudication 
to resolve tort disputes creates a situation in which the dispute resolution 
process costs approximately 50% of the total amount of money awarded as 
compensation. •^'^ By contrast, the Social Security Administration spends only 
3.7% of its budget on administrative adjudication.'^^ Some of this enormous 
difference in cost is attributable to the somewhat different issues to be resolved 
in tort cases versus disability cases, but a substantial proportion of the 
difference is attributable to the greater procedural and evidentiary formality of 
judicial adjudication. 

Proponents of the AU Corps are also candid in their rejection of the value 
of specialized expertise that is among the principal justifications for assigning 
adjudicatory functions to agencies rather than to Article III judges. In the 
words of one proponent: "It is true that judges. . .in a particular agency acquire 
an experience and expertise in a particular field and are better able to 
understand the issues involved and make an intelligent and just decision. But 
being a judge who is a general ist... far outweighs the advantages of being an 
"expert" in a particular narrow field of law. A judge is a 'judge. ' "'^ 

Rejection of specialized expertise as a justification for administrative 
adjudication would have major implications. Converting all AUs (and 
potentially non-ALJ adjudicators) into generalist judges would impose major 
costs on the agency adjudicatory system in the form of lost expertise. AUs 
preside in more than 100 different types of adjudicatory disputes at scores of 
different agencies. Non-AU adjudicators preside in another almost 100 
different types of adjudicatory disputes at scores of other agencies. Each of 
the hundreds of regulatory and benefit programs in which AUs participate is 
different and many are extremely complicated. A typical regulatory or benefit 
system can be understood only by mastering hundreds of pages of statutes and 
regulations, thousands of pages of judicial opinions, tens of thousands of pages 



'^. Kakalik & N. Pace, Costs and Compensation Paid in Tort Litigation k-x (Institute 
for Civil Justice, 1986). 

'^^SSA 1989 Annual Report at 30. 
'•'^^Simeone, supra n.l301, at 175. 



1044 Verkuil, GiFFORD, Koch, Pierce, AND Lubbers 



of agency guidelines and decisions, and the principles of one or more 
disciplines other than law. 

Many AUs arrive on the job with preexisting expertise in the area in which 
they are assigned to adjudicate cases (e.g., prior familiarity with statutes, 
regulations, case law, and major recurring issues). Others arrive with pre- 
existing expertise in one or more of the disciplines that must be applied in a 
given class of adjudications (e.g., medicine, economics, or engineering). 
Even those ALJs who lack relevant pre-existing expertise develop it during 
their first few years presiding at a particular agency. After a few years' 
experience, they are well-positioned to understand and to apply the 
complicated maze of statutes, regulations, and agency policies that govern the 
disputes they adjudicate. 

To illustrate the point, consider just three of the agencies whose 
adjudicatory systems are described in this report: NRC, FERC, and SSA. 
(Two of the three—FERC and NRC—are within the same division of the 
proposed Corps.) NRC's primary mission is to regulate civilian applications 
of nuclear power to protect public health and safety. The recurring issues 
require application of the principles of engmeering, large scale construction, 
physics, and meteorology. FERC's primary mission is to regulate the natural 
gas and electricity industries to ensure consumers face prices and price 
structures that are just, reasonable, and not unduly discriminatory. The 
recurring issues require applying the principles of microeconomics to two of 
the most structurally complicated industries in the nation. SSA's primary 
adjudicatory mission is to determine which of hundreds of thousands of 
applicants for disability benefits each year are eligible. The recurring issues 
require applying the principles of medicine to an infinitely variable set of 
physical and mental conditions, and then to compare the results of that process 
with the full range of vocations available in the U.S. economy. 

Each agency is governed by a different body of substantive law. In each 
case, the applicable law is accessible in a variety of sources that total well over 
100,000 pages. Moreover, presiding officers confront systematically different 
procedural problems at each agency. At NRC, the typical challenge is to 
referee a form of guerilla warfare between representatives of two opposing 
interest groups, each of which sincerely believes that the other threatens the 
nation's ability to survive. At FERC, the typical challenge is to create an 
orderly procedure that will accommodate the conflicting interests of 100 or 
more separately represented parties and still complete the hearing in a 
reasonable period of time. At SSA, the typical challenge is to help the 
frequently unrepresented or underrepresented applicant obtain the data required 
to support the claim and yet still be able to adjudicate fairly several hundred 
cases per year. Adjudicatory officers cannot make the transition from one of 
these regimes to another without significant sacrifice of expertise. Moreover, 



The Federal Administrative Judiciary 1 045 



it is impossible to devise a set of procedural and evidentiary rules that is 
appropriate to these widely varying types of disputes. 

Replacing the specialized AU model with the "generalist judge" model 
would have numerous secondary effects. To avoid an intolerable degree of 
interdecisional inconsistency and to retain agency control over the policy 
components of adjudicatory decisions, agencies would have to increase 
considerably the extent to which they engage in plenary review of the decisions 
of adjudicatory officers and/or the extent to which they confine the discretion 
of adjudicatory officers by issuing binding rules that govern the resolution of 
all disputes. As discussed in Chapter VI(D), however, agencies encounter 
great difficulties in their efforts to perform those critical functions today. 
Those difficulties would increase significantly if special purpose agency ALJs 
are replaced by generalist AUs controlled and assigned by a Corps. The 
agency would need to act on the assumption that each ALJ assigned to 
adjudicate a dispute has little or no prior knowledge of the agency's policies. 

Although the AU survey indicates that about half the AUs support the 
independent corps concept, '^^ in recent months it appears that even many AUs 
have concerns about the Corps bill's negative impact on AU expertise in 
particular agency programs. A leading AU organization that has been 
strongly supportive of Corps legislation in the past, the Federal AU 
Conference (FAUC), testified recently "that many of [its] members have 
raised concerns about the specifics of the bills to implement [the corps]," and 
that FAUC is seeking to "develop a consensus" on a "balanced structure 
which will promote the essential goal of assuring AU neutrality both in 
appearance and in fact, without diminishing AU expertise or the ability of 
agencies to obtain prompt handling of their cases. "'^ 

In seeking this consensus, a drafting committee sponsored by FAUC has 
developed a revised draft Corps bill (so far not endorsed or introduced) that 
would establish each existing agency AU grouping as a separate division of 
the Corps. '^^ Thus, instead of 8 divisions, there would be approximately 30. 
Future AU appointments would be made by the Director of the Corps and 
appointees would be assigned to those divisions. 



^■^^See 1992 ALJ survey, question 23 (Appendix). Of those responding, 54% said the 
absence of a corps was a "very serious" problem, 22% said it was a "somewhat serious" problem 
and 24% said it was "not" a problem. 

^^^Hearings on H.R. 3910 before the House Subcommittee on Administrative Law and 
Government Relations, 102d Cong., 2d Sess. April 29, (1992) (Statement on The Administrative 
Law Judge Corps Act, on behalf of the FAUC by Judge Victor W. Palmer). 

'^^ April 7, 1992 draft provided by FAUC. On file at the Administrative Conference. A 
general jurisdiction division would also be created forjudges whose agencies did not elect to have 
a separate division. 



1046 Verkuil, Gifford, Koch, Pierce, and Lubbers 



In this iteration, the Corps becomes largely an administering agency, 
analogous to the Administrative Office of the U.S. Courts, and the questions 
raised by the original proposal (and of course, its proclaimed benefits) are 
correspondingly reduced. Although a detailed analysis of the current draft of 
the FAUC bill is not offered here, it is sufficient to note that it represents a 
departure from earlier Corps proposals. '^^ Nevertheless, the fundamental 
question concerning whether a clear case can be made for establishing an 
independent Corps remains. To date, such a case has not been made.'^ 

VIII • Developing Standards for When to Use ALJs 
as Presiding Officers 

As this study has shown, there is no consistent standard for when to use 
AUs as opposed to non-AUs to hear significant cases. The APA, of course, 
designates AUs in situations where an on-the-record hearing is required by 
statute. But that provision is only triggered when other statutes so dictate. 
Many statutes do not invoke the explicit triggering language and therefore 
AUs have not been used, even in situations where the seriousness of the issues 
at stake should call for a formal AU hearing. '^'° In recent years this failure of 
Congress to extend APA hearings to comparable new cases has led to the 
development of an alternative corps of administrative judges who share some, 
but not all, of the characteristics of ALJs. In general, AUs are more 
independent than their AJ counterparts because of the legally required 
difference in treatment for selection, promotion and disciplinary purposes. 
The question is how can the use of AUs be regularized? This question is the 
subject of this chapter. 



'^°*For example, this report urges that Chief AUs (answerable to OPM) be given a greater 
role in management of AU performance. The FAUC draft would provide for a Council (made 
up of Chief AUs) and a Director of the Corps to perform similar functions. 

'■'^'^This study does not address possible Constitutional arguments relating to the various 
provisions in the the Corps proposals that provide for appointment or "grandfathering" AUs into 
the Corps. See Freytag v. Commissioner, 111 S.Ct. 2631 (1991).) While Freytag is a split 
decision, it raises the issue concerning whether "grandfathering" is permissible under the 
Appointments Clause because a Presidential appointee empowered to appoint a member of the 
proposed AU Corps must be permitted to exercise that power. 

'^'^terestingly, while there is no barrier to their use in nonformal hearing contexts, OPM 
has taken the position that it will only assign AUs to agencies where there is APA work to be 
done. OPM's decision in this regard is the result of a pragmatic judgment that this is the best 
way to counter agency demands for new allocations of AUs. It also makes sense on the 
conceptual grounds that it should be Congress' decision to create formal procedures and 
decisionmakers. 



The Federal Administrative Judiciary 



1047 



A. The Random Nature Of ALJ Use 



P.T 



Govt 



1 



Contiadte Bflinents Sanctions 

Case Significance 



In a perfectly 
planned system of 
administrative 
justice, the highest 
quality and highest 
cost deciders would 
be reserved for 
those adjudications 
where their 

expertise and 

independence were 
most needed. To 
make that 

determination one 
would have to rank significance of cases against qualifications of deciders. 
This could be done by graphing qualifications of deciders in ascending order 
on the vertical axis and significance of the case to individuals in increasing 
order on the horizontal axis. This would result in AU formal hearing cases 
being located in the upper right hand quarter of the graph. If one starts with 
the assumption that AUs are at the top of the decider qualification pole, '3" this 
leaves the horizontal axis to be clarified. 

The hierarchical model introduced in Chapter I and applied to various 
agency functions in Chapter III employs a balancing of interest analysis 
approach used in administrative due process cases. '^'^ The cases in which the 
individual's interest in fair treatment is highest should yield the most elaborate 
procedural protections, including the need for ALJs. These cases involve 
penalties, sanctions or restrictions on personal freedom. They would be placed 
on the farthest right hand point on the horizontal scale. 

The next class of cases include benefits or licensing determinations that 
involve monetary interests of individuals or corporations. The third class 



'^' 'Below ALJs would rank many of the AJs discussed in this study in descending order 
based on agency created protections of independence, including salary levels, and length of 
appointment and so forth. These would be followed by nonlawyer part-time deciders. 

^^^'^See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (Due process determinations require 
a balance between the importance of the procedures to the claimant, the cost of providing them 
and the needs of the government). 



1048 Verkuil, Gifford, Koch, Perce, and Lubbers 



might include suits against the government for monetary damages. Each of 
these classes of cases has already been discussed in some detail in Chapter III. 
We now strive to incorporate them into an overall approach for AU use. 

1. Comparing Deciders in Sanction and Penalty Cases 

ALJs are desirable in cases in which it is most important to ensure that 
deciders will be least affected by agency enforcement policy. Those cases 
include those that involve significant interests in freedom of action of 
particular individuals or of particular business firms or those that involve the 
imposition of sanctions. What one wants most to emulate in the administrative 
context in these cases is the level of independence achieved by the federal 
courts. The risk of bias can be best overcome by using the APA protections 
accorded AUs. Thus, there are many situations, such as NLRB unfair labor 
practice hearings, for which APA hearings with AUs presiding are required. 
But there are also many other comparable situations outside the APA umbrella. 
Those discussed in Chapter III include the Equal Employment Opportunity 
Commission, the Executive Office of Immigration Review, DOD's Directorate 
for Industrial Security Clearance Review and the Merit System Protections 
Board. Each of these agencies operates with non-APA administrative judges in 
settings that involve the resolution of substantial individual interests not unlike 
those arising at the NLRB or other agencies such as FTC. 

Even though Congress has not spoken directly in each of the non-APA 
programs, agencies have made some efforts to make their administrative judges 
as independent as possible outside the APA requirements. But questions 
remain. Can these agencies ensure decider independence when they still 
control salaries, promotions and hiring? Moreover, even if they could, would 
it be easier for Congress simply to incorporate these programs within the APA 
so that there was no need to mimic that statute's requirements? 

The EEOC has probably compensated best for any lack of independence 
associated with its use of AJs. Because the agency conciliates before it charges 
private employers with discrimination and then goes to federal court if a 
complaint is issued, the problem of decider independence is minimized. So 
long as cases are tried de novo before a federal district judge, maximum 
decider independence is ultimately achieved. If the employee's complaint is 
against a federal agency employer, the EEOC then uses either its own AJs or 
ones drawn from an agency other than the respondent agency to decide the 



The Federal Administrative Judiciary 1 049 



case/ By virtue of the fact that none of the AJs can be from the agency that is 
alleged to have discriminated, the potential for bias is again limited.^ 

With regard to AJs in EOIR and DISCR, there is a greater potential for 
bias simply because the AJs are employed and controlled by the agencies 
before whom individuals must present their cases. Under the Department of 
Justice's aegis, immigration judges are placed within the Executive Office of 
Immigration to isolate them from direct policy interference by the agency. 
The Department also employs four ALJs to hear employee sanction cases and 
about 120 asylum officers who are employed by INS to hear asylum cases. ^ In 
effect, the Department of Justice runs the gamut in decider formality in those 
three classes of cases, each of which involves significant private interests. The 
AUs are reserved ironically for those matters where personal freedom is not 
really at stake—fines and sanctions against employers for hiring illegal aliens or 
for discriminating against job applicants because of alien status. Asylum 
officers are often nonlawyers and they are required to resolve claims for 
asylum in a nonadversary (and often nonhearing) setting. Since these cases 
may be reheard in deportation or exclusion proceedings by Us, the problem of 
asylum officers independence can usually be overcome at that stage. 

This of course leaves the issue of U independence itself. In recent years 
efforts have been made to make Us as independent as possible within the non- 
APA setting. They are managed, controlled and disciplined by a Chief 
Administrative Judge, within the Department. In addition, a bill pending in 
Congress would grant Us salary benefits commensurate with ALTs.^ But no 
proposal has been made to convert these judges to AUs. The Department's 
objections to ALJ status for Us continue to center on the issue of agency 
control of the selection and discipline process.* But there is no way for the 
Department of Justice to make Us as independent as AUs so long as they are 
within the agency for salary determination and promotion purposes. The 
appearance, if not the reality, of decider control still clouds the process. 

*See discussion at Chapter III (A). 

^This is also essentially the case with MSPB AJs who rule on cases brought by outside 
agencies against their employees. See Chapter III (C) (3). But there are other reasons that may 
make the 66 MSPB AJs candidates for AU status. Their independence has been questioned and 
legislation has been introduced to make them more independent. See id. At some point this kind 
of legislation suggests that ALJ status might be more sensible. See discussion infra at Chapter 
Vm(B). 

^'^ee Chapter m (C) (1). 

''S .2099 . See note 1 026 , supra . 

testifying in opposition to a bill to convert immigration judges into ALJs, Attorney General 

William French Smith stated the common wisdom that "an absence of accountability would 

only compound existing management problems." See Verkuil, A Study of Inrunigration 
Prtxedures, 31 U.C.L.A. L. Rev 1141, 1195 (1984). 



1050 Verkuil, Gifford, Koch, Pierce, and Lubbers 



appearance, if not the reality, of decider control still clouds the process. 
Moreover, the argument that management control is necessary because of 
problems with OPM's selection and disciplinary process for AUs would fail if 
the reforms proposed in Chapter VII of this study were implemented. 

2. The Use of ALJs and AJs in the Benefits and Licensing 
Areas 

The need for the maximum independence of AUs in cases involving 
personal freedom can be contrasted with the use of AUs in benefits and 
licensing cases where only monetary interests are at stake. In this category are 
individual disability decisions by SSA and DVA and large scale licensing 
decisions by FERC and NRC. These situations were described in Chapter 
III.'3'« 

Benefit decisions are characterized by large volume caseloads and the 
application of a complicated legal standard to a variety of medical conditions. 
This is an area where consistency of outcomes has become a partial surrogate 
for accuracy of result. What is sought is a decision system that concentrates 
on consistency of outcomes as much as on production of individualized 
decisions that reach fair results. A limited set of medical conditions recurs in 
substantial numbers. The central goal is to ensure that those similarly disabled 
will be treated equally no matter where or before whom they appear. 
Obviously this is a massive management task. Assuring fairness to the overall 
class of millions of claimants might lead to different procedural tradeoffs than 
simply assuring fairness to those persons who can persist in appeals all the way 
through the system. 

The two systems studied have proceeded in different directions regarding 
the use of AUs. The SSA is committed to their use and these judges (now 
more than 850 strong) decide more than 250,000 cases per year. The DVA, 
on the other hand, uses rating boards, hearing officers, and the Board of 
Veterans Appeals (each of which consists of lawyers, nonlawyers and medical 
personnel) to reach results in hundreds of thousands of cases per year. The 
question of decider independence in both systems seems secondary to other 
concerns. Until there is a way to measure the quality of output under either 
system, there can be no sure way to measure the value of AUs as deciders in 
this setting. In other words, the case for expanding the use of AUs in the 
mass justice arena of disability benefits cannot be made on the value of decider 
independence alone. '^'' At the same time, it is equally difficult to argue 



'^'*5tftf Chapter III (B) and (D). 

'-^''ironically, the independence of SSA AUs themselves has been challenged by claimanU in 
the hearing process who contend that reversal rates of individual ALJs nuiy be indicators of bias. 



The Federal Administrative Judiciary 105 1 



against the use of AUs in the social security disability context since they are 
an experienced cadre of disability experts who should hardly be converted into 
AJs without a clear reason to do so. Thus, there is neither a case to expand 
nor contract AU use in the benefits area at this time. Further experimentation 
with existing systems may demonstrate better ideas. The use of panels of 
deciders is one that has already been mentioned. Moreover, experience with 
the use of an Article I disability court in the veterans benefits setting may yield 
more generalizable results in the future. 

When it comes to big cases, FERC is an expert. Its 23 AUs routinely 
produce initial decisions in cases with stakes of over $100 million. There is 
much to recommend the use of AUs at FERC, especially those with expertise 
in economics and statistical analysis. The NRC on the other hand decides 
cases with as much at stake financially (nuclear power plant licensing and 
enforcement cases) through the use of non-AUs. These expert deciders can be 
lawyers, economists or engineers and they usually sit in three-person 
panels.'^* In both the FERC and NRC examples the critical issue for 
expanded AU participation—that of the need for enhanced decider 
independence—does not seem to be involved. 

Since these cases tend to be carefully reviewed and often set aside by the 
agency itself, independence from the agency is a less meaningful concept. 
Thus there is not much of a basis to proclaim an expanded use of AUs in these 
types of cases. Moreover in the DVA and NRC situations nonlawyers sit on 
the panels that make the AU level decisions. Because AUs must be legally 
trained there would be no way to convert these seemingly well-qualified 
deciders into AUs without limiting experimentation with decider 
qualifications. This would be an unfortunate result. 

3. The Use of ALJs and AJs in Cases For Monetary Damages 
Against the Government 

This class of cases is unusual in that AUs do not appear at all. Even if one 
includes the Tax Court and its Article I function of resolving tax claims for 
and against the government, no AUs are used.'^^' The two situations explored 
in this study involve contract claims against the government that can be heard 



See discussion in Chapter VI(D)(3). No comparable challenges have so far been leveled against 
DVA deciders. 

^^^See Chapter ffl (B). 

'■'^'Nor are claims under the Federal Tort Claims Act heard by ALJs. They are first 
detennined by agency officials, and then taken to federal district court. See Bermann, Federal 
Tort Claims at the Agency Level: The FTCA Administrative Process. 35 Case W. Res. 509 (1984- 
85). 



1052 Verkuil, Gifford, Koch, Pierce, and Lubbers 



by Boards of Contract Appeal or the U. S. Claims Court. '^22 i^g fiCA judges 
are not AUs, but they enjoy substantial independence from the agencies that 
employ them by virtue of the control granted the Chief BCA judge in most 
agency settings J ^^ 

The Claims Court judges, of course, enjoy independence (and status) that 
rivals if not exceeds that of AUs. They are selected for 15-year terms 
pursuant to presidential nomination and Senate confirmation. Their decisions 
are reviewed by the U. S. Court of Appeals for the Federal Circuit. Claims 
Court judges rival federal district judges in their independence. But in terms 
of exjjertise they suffer in comparison with BCA administrative judges. 
Litigants and their attorneys even seem to prefer BCA judges to Claims Court 
judges in situations where either one can hear the cases. '^^ 

This expression of preference arguably overcomes recent evaluations by the 
GAO that urge protections against control by the Armed Services over BCA 
judges that would create protections similar to those provided by OPM for 
ALJs.'^^ These protections would certainly be reassuring, but since litigants 
have a choice of forums, the alleged lack of independence of BCA judges is 
not as much of a concern in this setting. '^^ Indeed, BCA judges have a higher 
salary than ALJs. Certainly on an interest analysis scale, the issues at stake do 
not seem to require ALJs to protect individual rights. The best argument for 
AUs rather than BCA judges stems from the fact that if Congress extends most 
of the APA's protections of AUs to BCA administrative judges, then it might 
as well go all the way to place them and their processes within the APA as a 
way of avoiding balkanization of the administrative process. 



B. The QualiTied Case for Conversion of AJs to ALJs 

The distinctions between AUs and all the non-APA administrative hearing 
officers we have lumped together under the term administrative judges have 
narrowed in recent years for a variety of reasons. First, the focus by the 
courts on administrative due process, a rather vague concept until the 



^^^See Chapter m (E). 

'^^In the smaller agencies this may not be as true as it is in the Armed Services Board of 
Contract Appeals. 

^^^See Chapter ID (E) (3). 

•^^^ some of the snwUer Boards of Contract Appeals, such is at the Department of 
Agriculture, the independence problem may be more severe. See note 1323, supra. 



The Federal Administrative Judiciary 1053 



1970s, ^'^ has emphasized the need for procedural integrity in the informal 
setting. '^^ This judicial movement applied, of course, to both federal and state 
administrative decisionmaking, but the emphasis on the federal level has 
always been moderated by the very presence of the APA itself. Unlike the 
situation in most states, where the development of administrative procedures 
for agency hearings has been halting, the federal APA has defined standards 
for administrative due process for many years. '^^9 

The 1970s due process revolution did, however, bring to light gaps in the 
APA's coverage that required attention.'^* To fill these interstices, the 
agencies themselves began to improve the quality of non-APA decisionmaking 
and decisionmakers. In terms of our concerns here, the efforts made by 
agencies to professionalize the deciders they employed certainly offset many 
objections about fairness and independence of the informal process. Indeed, 
the term administrative judge has come into the regulatory lexicon later than 
administrative law judge to signify the increased status to be accorded non- 
APA deciders. 

But this development of a substitute administrative judge corps has its 
counterproductive effects. To the extent that the APA was meant to be a 
unifying force in administrative procedure, it is frustrated by these carefully 
drawn alternative processes. As a practical matter, there is now more than one 
kind of informal process. There is the formal -informal process that is presided 
over by AJs, which is "informal" only because it is outside sections 556 and 
557~the APA formal process. As noted at the outset of this study, there is 
also what we might label the informal-informal process. That process is one in 
which the deciders are often neither full time nor legally trained and the 
procedural structure of any hearing is minimal or nonexistent.'^^* The non- 
APA process that is presided over by AJs is, in fact, far from informal in that 
sense. The deciders are called judges and the hearings contain most of the 



•327it is from the landmark case of Goldberg v. Kelly, 397 U.S. 254 (1990), that most of the 
developments in administrative due process are dated. There was, of course, interest in that 
subject before then but it hardly constituted a judicial focus. 

'^^Admittedly, Goldberg asked very little by way of decider independence when it 
constitutionalized administrative procedures. See notes - supra. Nevertheless, the procedural 
focus has over time heightened concerns about deciders as well. 

'•'^^deed, it was the very purpose of the APA when it was enacted to bring due process to 
administrative law. See remarks of Sen. McCarren. 

^^^See e.g. Verkuil, Study of Informal Adjudication Procedures, 43 U. Cm L. Rev 739 
(1976). 

^^^^See discussion in Verkuil, id. at 792 which discusses an informal adjudication process that 
approximates the basic ingredients of notice-and-conunent rulemaking. 



1054 Verkuil, Gifford, Koch, Pierce, and Lubbers 



ingredients of an APA formal hearing. Virtually all the non-APA cases 
discussed in Chapter III exhibit these qualities, for example. 

Another apprehension that may cause agencies to resist using AUs might 
be a feeling that the APA on-the-record hearing procedures are too formal and 
that using AUs brings costly and unnecessary formality. But it is too often 
forgotten that the APA is a procedurally flexible statute. It, in fact, places 
limits on the right of cross examination and permits written hearings in 
numerous types of cases. '^^^ There is no reason why AUs could not be asked, 
or even required by regulation, to use these informal procedures and/or even to 
engage in alternative dispute resolution techniques.'''^ 

Thus we have come to a crossroads: Should we encourage more formal 
non-APA AJ hearings or should we argue for expanding of the APA when an 
agency or Congress provides functionally equivalent processes? 

In making this decision, it must be accepted that the reasons are not related 
to constitutional level problems of fairness or independence. One of the 
critical conclusions of this study is that the informal process as we define it 
and the deciders who preside over it are not constitutionally deficient. 
Moreover, our empirical survey shows that AJs consider themselves just as 
independent as AUs."'^ That is an important confirmation of their decisional 
integrity. They have little complaint about agency interference even though 
they are subjected to more agency supervision over salary and employment 
conditions than AUs.'''^ 

Overall, AJs are as respected by the lawyers who practice before them as 
are AUs. In terms of educational and experience levels, our surveys showed 
that AJs are much like AUs. Thus, in the last 10 years or so AJs have quietly 
emerged as a professional group of deciders who look, act and are treated 
much like AUs. 

If they are so close to AUs as a functional matter, why not designate them 
as such? Certainly doing so would honor the historical function of the APA 
and it would ensure that no objections based on independence could be 



^^■^"^See 5 U.S.C. §556(d). See also, Verkuil, The Emerging Concept of Administrative 
Procedure, 78 CoLUM. L. Rev. 258, 313-15 (1978). 

•'''Such duties would clearly not be "inconsistent with their duties and responsibilities as 
administrative law judges." 5 U.S.C. §3105. The Conference has often recognized the potential 
role of AUs in ADR activities. See ACUS Reconunendations 88-5, Agency Use of Settlement 
Judges, 1 CFR §305.88-5 (1992); 86-8, Acquiring the Services of Neutrals for Alternative Means 
of Dispute Resolution, 1 CFR §305,86-8 (1992); and 86-3, Agencies' Use of Alternative Means of 
Dispute Resolution, 1 CFR §305.86-3 (1992). 

"'^^^tf Chapter IV (F). 

'''^Ironically, ALJs still seem to complain nwre about agency interference than do AJs. See 
notes 849-54 supra. 



The Federal Administrative Judiciary 1 055 



emerged in the future. The arguments against doing so are basically three: 
The first is the "if it ain't broke, don't fix it" proposition. The second is the 
recognition by agencies that AUs are more difficult to select, assign and 
manage or discipline than are AJs within the agency; and the third deals with 
the cost of deciders (some are lower in grade than AUs.)'^^ 

The first argument, for the status quo, can be readily met by the counter 
proposition that the APA is meant to be a unifying force in defining the formal 
process. If AJs are by rule or statute presiding over what are functionally 
formal processes, why not bring them within the APA, assuming the second 
objection is met. The second argument has considerable force at present- 
agencies resist AUs because of the cumbersome and unproductive way they 
are selected, assigned and managed. This was clearly shown in Chapters V 
and VI. Unless the reforms proposed there are implemented, it is hard to rebut 
an agency's reluctance to convert AJs to ALJs. But the contrary proposition 
also has merit. If those reforms are achieved, these objections are removed as 
valid issues. Agency reluctance to employ AUs thereafter might be read as 
simply a concern about control ~a concern that would be inappropriate in 
agencies that decide cases involving serious curtailment of individual interests. 

The third objection—that of cost— is not to be ignored in these fiscally 
stringent times. It is not easy to quantify the compensation differences 
between the two groups of deciders but obviously if there is a three or four 
grade difference, the dollars can be significant. Moreover, preservation of 
some salary gradations in the administrative judge community makes it 
possible to restore a kind of multi-grade structure that was originally intended 
for AUs but lost over the years. '^^^ But at the same time some administrative 
judges are having their salaries raised to AU levels by separate legislation. 

For example, BCA judges are already paid more than AUs and there are 
currently pending in Congress several bills designed to give some non-AUs 
AU-like protection and benefits without calling them AUs. One bill gives 
such protections to administrative judges at the Merit Systems Protection 



'^■^or example, EEOC judges are GS-13s and Ms versus the super grades of AUs. 

■"'5tftf Scalia, The AU Fiasco-A Reprise, 47 U. Cm. L. Rev. 57 at 62-75 (describing-and 
arguing for— the original APA plan which used promotions of ALJs to higher grades as a quality 
control technique). The use of multigrade "examiner" positions was specifically approved by the 
Court in Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953). 



1056 Verkudl, Gifford, Koch, Pierce, and Lubbers 



Board, '^^ another offers comparable salary benefits to immigration judges,''^' 
and a third does so for the Board of Veterans Appeals.'^ 

Here the question earlier asked needs to be reemphasized: If Congress is 
going to equate MSPB judges, Immigration Judges and BVA judges with AUs 
in terms of salary and independence from agency control, why not simply take 
the next step and convert them directly to AUs?'^' This argument gains 
special force if the reforms to the selection, appointment and disciplinary 
process are accepted. But it should apply in any event to those administrative 
judges who decide cases with great significance to individuals— such as those 
that come before inmiigration judges (deportations or exclusions) or DISCR 
judges (security clearance cases). The touchstone seems to be whether a 
serious curtailment of individual interests is at stake. If so, the step from 
formal -informal to truly formal processes should be taken. 

The qualified case for conversion of AJs to AUs comes down to this basic 
proposition: the APA formal hearing requirements, and hence AU status, 
should extend to cases where serious individual interests are implicated. 
Congress should see to it where new "me too" AJ legislation is being proposed 
that the APA's mandate is met instead. '^^ To ignore this opportunity will only 
further balkanize the administrative process when uniformity and consistency 
are much to be valued. 

IX. Conclusions and Recommendations 

In enacting the Administrative Procedure Act in 1946, Congress 
determined that in the interest of efficiency, accountability, and the 
development of expertise, there should be a concentration of legislative, 



^^^See the Merit Systems Protection Board Administrative Judges Protection Act of 1991. 
H.R. 3879, 102d Cong. 1st Sess. 137 Cong. Rec. H10930 (daily ed. Nov. 22, 1991). 

^^^^See S.2099, 102d Cong. 1st Sess. (Sept. 26, 1991) (establishing a special pay scale for 
immigration judges just below that of ALJs). In submitting the bill, Senator Kennedy 
commented: "cleariy, the responsibilities and duties of immigration judges are on an equal 
standing with that of administrative law judges, in terms of both their level of authority and 
complexity of issues adjudicated." 137 Cong. Rec. S18417 (Daily ed. Nov. 26, 1991). One 
might fairly ask why not just convert immigration judges to ALJs if this is correct? 

^^See H.R. 3950, 102d Cong. 1st Sess. 137 Cong. Rec. HI 1885 (daily ed. Nov. 26, 
1991). (malting BVA pay comparable to ALJs). 

'^'indeed the Department of Interior recently converted its "Indian Probate Judges" to ALJs, 
after OPM determined that the individual judges met the minimum qualifications for AU sutus. 

'^^onverscly, if no serious curtailment of individual interests is involved, agencies should 
be encouraged to experiment with informal procedures and decider qualifications. This may be 
the situation, for example, in agencies dealing with benefits and contracts cases. In particular, 
those cases may allow experimentation with specialized, nonlawyer decisionmakers. 



The Federal Administrative Judiciary 1057 



enforcement and adjudicatory authority within each agency. This 
concentration of functions does not violate recognized principles of due 
process. At the same time, the APA provided that adjudicatory factfinders be 
insulated from investigative and prosecutorial functions within the agency 
through a system of internal separation of functions. Since 1946, the 
administrative judiciary has evolved as an essential component of the federal 
administrative decisional system. Indeed, government could not function as it 
is currently structured without these decisional officials. 

As this study has demonstrated, the administrative judiciary requires 
sufficient protection from agency influence to encourage and facilitate the 
exercise of independent judgment with regard to evidentiary factfinding in the 
record of an adjudication. But, at the same time, the presiding officer, 
whether an administrative law judge or some other administrative adjudicator, 
functions within a framework of administrative, not judicial, decisionmaking. 
Thus, the concept of a completely independent corps of presiding officers has 
been eschewed because the APA contemplates that the administrative 
adjudicator would have only partial independence from agency control. 

This study has reemphasized this essential compromise struck in the APA 
because the authors believe it is valid for logical as well as historical purposes. 
It is to the Executive agency that Congress and the Constitution have delegated 
authority; the duty of the administrative adjudicators is to implement agency 
policy under an adjudicatory system that relies upon the integrity of the fact- 
finder. 

Being a successftil administrative adjudicator is a complicated task 
involving deference to agency policy choices and obedience to agency rules, 
but also rigorous independence within delegated decisional authority. Those 
who perform this role well are extremely valuable public servants. Despite 
such difficult assignments, the vast majority of these judges perform admirably 
and prove that Congress correctly determined that this complicated role could 
be effectively performed primarily by a special category of officers- 
administrative law judges— under the APA. 

To ensure the continued value of this approach, the study has emphasized 
that there is much that can be done to dampen the legitimate criticisms of the 
system concerning selection, discipline and performance as well as to assuage 
the concerns of the judges concerning the protection of decisional 
independence. A number of modest changes can be made that will improve 
perceptions and quiet concerns about selection, independence, and 
accountability. If such challenges are not answered, agencies will likely 
continue to seek alternatives to the use of ALJs to avoid a counterproductive 
set of problems that can be readily corrected, and presiding officers will 
continue to seek fuller independence from agency direction. This study's 
conclusion is that AUs employed by agencies should be used in proceedings 



1058 Verkuil, Gifford, Koch, Pierce, and Lubbers 



that are functionally formal. Non-AU adjudicators should be used where 
special circumstances, such as the need for nonlawyer expertise, militate 
against the use of AUs. But administrative judges should not be employed in 
lieu of AUs simply to avoid bureaucratic impediments to AU selection. 

Although this study has discovered a professional and diverse group of 
non-AU deciders, it has not uncovered a significant or persuasive reason 
associated with the APA for using such deciders as opposed to AUs. The 
study included an empirical survey of AUs and AJs to describe, for the first 
time, the professional qualities and concerns of this large universe of federal 
administrative deciders. Somewhat surprisingly, but reassuringly, there seems 
to be little difference in the degree of independence both groups feel they have 
from improper agency controls on their decision process. Both groups emerge 
as relatively productive and secure. 

The recommendations that follow are intended to suggest some modest 
changes that will ensure that these officials continue to perform at even more 
effective levels, and that they will be able to do so within the framework of 
what after 45 years remains the best organizing structure, the Administrative 
Procedure Act. 



Recommendations 



The Administrative Procedure Act provides for a uniform class of 
employees, known as administrative law judges, to conduct formal agency 
adjudications and to initially decide the factual issues in controversy. This 
system provides procedural fairness and uniformity in agency decision-making 
processes and should be preserved. Over the years, however, certain perceived 
difficulties with the AU system have led Congress and the agencies to avoid 
using AUs in many such formal adjudication programs. This results in losing 
many of the benefits the APA system seeks to realize. The Conference 
recommends the following steps to restore the benefits intended by the APA 
system while alleviating the perceived disadvantages. The Office of Personnel 
Management (OPM) or Congress should take the following steps: 

I. Agency Use of ALJs and AJs 

A. Congress should consider expanding the category of cases where 
AUs are required (i.e., on-the-record hearings subject to APA formal 
procedures) to preserve the uniformity of process and decider 
qualifications contemplated by the APA. To achieve this goal, Congress 
should consider converting certain administrative judges (AJs) to AUs. 



The Federal Administrative Judiciary 1059 



B. In making its determination of when to convert AJs to ALJ status, 
Congress should focus on the following factors: 

1. Whether the cases heard and decided by the AJs involve 
potentially serious curtailment of individual interests ("Serious 
curtailment of individual interests" should be defmed to include 
those cases that involve penalties, sanctions, or other significant 
restrictions on personal freedom.) 

2. Whether the procedures established by regulation or statute 
for the cases heard and decided by the AJs are the functional 
equivalent of APA formal hearings 

3. Whether the AJs involved already meet standards of 
independence, selection, experience, and compensation that 
approximate those accorded to ALJs 

4. Whether the AJs are lawyers. 

C. When considering how and when to preserve uniformity of 
process under the APA, Congress should also continue to be alert for 
opportunities to experiment with procedures and decider qualifications in 
the nonformal process. Generally speaking, cases involving government 
benefits, grants or contracts should be candidates for procedural 
experimentation, as should cases where there is a need for specialized, 
nonlawyer decisionmakers. 

D. When converting existing AJs to AU status. Congress should 
require that OPM automatically appoint those existing AJs designated by 
the agency involved, subject to an OPM determination that the individual 
AJs meet the minimum qualifications for AU status. ^ 

E. OPM should no longer be responsible for second guessing agency 
requests for additional AU positions— those decisions should be the 
purview of agency management. 

n. Preserving the Unified Agency Model 

Generally speaking, the traditional unified structure that places agency 
policymakers and semi -independent adjudicators under one roof should be 
preserved. Accordingly, the split-enforcement mode of separating 

policymakers and adjudicators into separate agencies should be disfavored and 
Congress should resist efforts to separate AUs from the agencies and lodge 
them in an independent corps. 



'Whether the newly consolidated pay scale for AUs (5 U.S.C.A. §5372 (1991)] needs to be 
modified to accommodate converted AJs deserves consideration, but this report does not lake a 
position on the issue. 



1060 Verkuil, Gifford, Koch, Pierce, and Lubbers 



m. Modifications in the ALJ Program 

A. Reformmg the AU Selection Prcx^ess 

1. 0PM should continue to determine the minimum 
qualifications for AU positions and rate the experience of individual 
applicants. Candidates who rate sufficiently high should be listed 
alphabetically (without numerical rankings) as "eligible." OPM 
would no longer administer the personal reference inquiry, panel 
interview or written demonstration, but would leave those activities 
to the hiring agency. The hiring agency should be permitted to hire 
any eligible candidate off the list of eligibles, subject to approval of 
an agency executive review board, similar to that used for hiring 
members of the Senior Executive Service. 

2. To facilitate this change in the AU selection process, OPM 
should exercise its discretion to designate AUs as "excepted 
service" employees (i.e., not part of the competitive service), or 
Congress should so direct by statute. 

3. The mechanical application of veterans preference in the 
hiring of AUs, which has had a significant impact on the hiring 
process, should be modified. 

a. Congress should consider eliminating veterans 
preference entirely in hiring AUs, as has been done in hiring 
SES members. 

b. If the AU selection process is revamped as suggested 
in paragraphs 1 and 2 (above), but without elimination of 
veterans preference, veteran status should be noted on the list 
of eligibles and preference should be given, in appropriate 
ways, by the hiring agency (as is now done in the hiring of 
other excepted service attorneys). 

4. If the AU selection process is not revamped as suggested in 
paragraphs 1 through 3 (above), then Congress and OPM should, as 
separate matters, take the following actions: 

a. Congress should either eliminate or significantly 
reduce veterans preference in that process, either by lowering 
the number of points added or by amending the "rule of 
three" to permit agencies to select anyone from the top 10 
available persons on the register. ^^"^^ OPM should also, in 
that event, make it easier for agencies to use "selective 
certification" to hire specially qualified applicants. 



'^***The Conference has already formally recommended this in ACUS Recommendation 69-9, 
■Recniilment and Selection of Hearing Examiners;. . . .,"1 CFR §305.69-9 (1989) 14. 



The Federal Administrative Judiciary 1 06 1 



b. OPM should establish separate qualifications and 
maintain a separate list of eligibles for AU positions at the 
Social Security Administration (and perhaps other benefit 
claims agencies) and tighten the requirements for transfer 
from SSA to other agencies. 
5. OPM should, once it revamps the selection process, reopen 
the application process for AU positions and keep it open on a 
continuing basis. 
B. A New System of Performance Appraisal and Discipline of AUs 
The current exclusion of ALJs from the system of performance 
appraisals applicable to SES members and other federal employees [in 5 
U.S.C. §4301(2)(D)] and the current OPM regulation barring agency 
performance ratings of ALJs [in 5 CFR §930.211] results in poor 
communication with AUs about their expected performance in regard to 
case processing, interaction with parties and the public, and application 
of agency policies and priorities. This allows problems to go uncorrected 
until they require formal disciplinary actions before the Merit Systems 
Protection Board. The current rules should be modified to permit the 
following type of system: 

1. A Chief Administrative Law Judge should be appointed by 
each agency employing more than one AU. Chief AUs should be 
given the responsibility to: 

a. Develop appropriate case processing guidelines with 
the participation of AUs, agency officials, and advisory 
groups, and subject to the oversight and approval of OPM'^^ 

b. Collect and maintain data on individual AU 
performance based upon those guidelines and on adherence to 
agency rules and substantive policies 

c. Conduct performance appraisals on AUs based on 
those case processing guidelines and adherence to agency 
rules and substantive policies, at appropriate intervals 

d. Recommend commendations and awards for superior 
performance 

e. Undertake counseling, training or other ameliorative 
activities with respect to an AU's performance 



'^^See ACUS Recommendation 86-7, "Case Management as a Tool for Improving Agency 
Adjudication," 1 CFR §305.86-7 (1992) 11: "Agencies possess and should exercise the 
authority, consistent with the AU's . . . decisional independence, to formulate written criteria for 
measuring case handling efficiency, prescribe procedures, and develop techniques for the 
expeditious and accurate disposition of cases." 



1062 Verkuil, Gifford, Koch, Pierce, and Lubbers 



f. Receive complaints from AUs about undue agency 
pressure or infringement on decisional independence, 
determine whether such complaints are meritorious and take 
appropriate steps to resolve meritorious complaints and 

g. Issue reprimands, or recommend that the agency bring 
formal charges for good cause, against individual AUs 
before the MSPB. In agencies with numerous AUs, the 
Chief AU may wish to establish peer review groups to 
provide advice on whether to bring such charges. 

2. Chief AUs, when assigned the above responsibilities, should 
be insulated from improper agency pressures. OPM should set up 
an office or expand its current Office of AUs to review agency 
hiring of, and all personnel decisions involving. Chief AUs. This 
office should also be responsible for reviewing the performance of 
Chief AUs and overseeing and approving the case processing 
guidelines established by the Chief AUs. 

3. The MSPB, when assigning cases involving charges against 
AUs, should consider using a pool of AUs or using a multi-judge 
panel of AUs to hear and recommend decisions in such cases. 

rV. Effectuation of Policy Control by Rulemaking 

The system of agency adjudication that relies heavily on independent AUs 
to find facts and make initial decisions should also ensure that agency 
policymakers can establish policies in an efficient manner for application by 
AUs in individual cases. Thus, agencies should articulate such policies, 
through rules of general applicability or a system of precedential decisions, '^^ 
and Congress, the President and the courts should strive to encourage such 
policy articulation and, in particular, reduce procedural impediments to 
rulemaking. When agencies make their policies known in an appropriate 
fashion, AUs should be bound to apply them in individual cases subject, of 
course, to parties' right to show that the policy may be inapposite in the 
particular case. 



^^^See generally ACUS Recommendation 71-2, "Articulation of Agency Policies," 1 CFR 
§305.71-2 (1992); ACUS Recommendation 87-7, "A New Role for the Social Security Appeals 
Council" 1 CFR §305.87-7 (1992), and ACUS Recommendation 89-8, "Agency Practices and 
Procedures for the Indexing and Public Availability of Adjudicatory Decisions," 1 CFR §305.89- 
8 (1992). 



ACUS -- AUs BY Grade and Agency 



1063 



Appendix I 



TOTAL AUs BY GRADE & AGENCY (may i, 1992) 





AL 3 
A" 


AL-3 

— B 


AL- 

C 


AL-3 

D 


AL-3 

E 


AL-3 
F 


AL-2 


AL- i 


TOTAL 


Agncurtur* 








■ '! 








1 = 


Cofnm«rc« 
















1 1 


Commodity Future* Trading CommiMton 


















3 


Education 








2 


1 








3 


Environmantal Protection Agency 










4 




1 




7 


Federel Communicetion* Commltelon 








1 


4 




1 




9 


Federal Energy Regulatory Commiaaion 


1 






1 


1 


18 




1 


22 


Federal Labor Relatione Authority 








1 


2 




1 




9 


Federal Maritime Commiaaion 


















3 


Federal Mine Safety & Health Review Commiaaion 






1 


3 


1 




1 




11 


Federal Trade Commiaaion 




















MKS/Departmental Appeale Board 






1 


2 












HHS.'Food and Drug Adminiatration 




















HHS/Social Security Adminiatration 


92 


190 


70 


415 


80 




11 




866 


Houaing & Urt>an Development 




1 




3 






1 






Interior 








6 


2 








12 


!rrter»lBt8 Commerce Comml»«lon 




















Jurtlce/Onjg Enlorcemont Adminiatration 










1 










Justice/Executive Ottice of Immigration Review 










3 










Labor 






4 


20 


43 




9 


1 


84 


Merit Syetem* Protection Board 




















National Labor Relationt Board 










36 


39 


5 


1 


81 


National Transportation Safety Board 








2 


1 










Nuclear Regulatory Commiaeion 




















Occupational Safety & Health Review Commlasion 








3 


4 




1 




16 


Office of Thrift Superviaion 




















Small Busineat Adminiatration 










1 










Securttie* and Exchange Commiaaion 














1 






TranaportatlorVCoait Guard 








e 










10 


Tranaportation/Office of the Secretary 










2 




1 






IntemaJional Trade Commiaaion 








1 


1 




1 




3 


Postal Sen/ice 










1 








2 



TOTAL 83 I 191 | 76 | 471 | 190 ! 126 I 35 



1064 ACUS 



[No Appendix 11] 



ACUS 1065 



[No Appendix HI] 



1066 ACUS - Survey of ALJs for All Agencies 



Appendix IV A 

Survey of 
ADMINISTRATIVE LAW JUDGES FOR ALL AGENCIES 

This questionnaire is a part of a study of the practices and attitudes of 
Administrative Judges ("AJs") and Administrative Law Judges ("ALJs").' 

Please answer each question in the space provided and RETURN THE 
COMPLETED FORM WITHIN ONE WEEK. If you have additional comments, 
please include them. The anonymity of respondents will be preserved. 

1 . Type of Function: 

7 Civil Rights Enforcement 

39 Health & Safety 

4 Environment 

5 Commodities & Securities 
9 Trade Regulations 

49 Labor Relations & Personnel 
28 Licensing & Rate-making 
19 Program Grants & Resource Management 
378 Individual Economic Support - SSA 

40 Individual Economic Support - All other 
(610 Total) 

2. Number of years you have been an AU. 

0-3 28% 

4-6 10% 

7-9 4% 
10-12 16% 
13-15 12% 



16-18 


13% 


19-21 


11% 


22-24 


3% 


25-27 


0% 


27 -f- 


2% 



'Most of the questions in this survey duplicate or parallel those of a survey of ALJs by Paula 
P. Burger, Judges in Search of a Court: Characteristics, Functions, and Perceptions of 
Federal Administrative Law Judges (1984 & photo, reprint 1985, University Microfilms 
International). Other sources include United States General Accounting Office, Survey of 
Administrative Law Operatioss; and Donna Price Cofer, Judges, Bureaucrats, and the 
Question of Independence (1985). 



ACUS -- Survey of AUs for All Agencies 



1067 



3. Number of years you have been an ALJ at your present agency. 



0-3 31% 

4-6 12% 

7-9 4% 

10-12 19% 

13-15 10% 



16-18 12% 

19-21 8% 

22-24 1% 

25-27 0% 

28+ 1% 



4. Number of agencies at which you have served as an ALJ. 

More than 4 - 1 % 



1 - 77% 
2-17% 

5. Your age. 



3-4% 
4- 1% 



0% 


Under 30 


20% 


45-49 


,2% 


30-34 


16% 


50-54 


1% 


34-39 


19% 


55-59 


5% 


40-44 


21% 


60-64 






18% 


65 & Over 



6. How would you describe your role in the administrative process? (separate 
sheet) 



7a. Do the cases you decide come to you as appeals from another determination 
level? 



Yes -77% No -23% 

7b. If so, do you make your decision on the record or file made at this other level? 



Yes- 5% 



No -95% 



7c. Or, do you make your decision based in whole or in part on a record made in an 
oral fact finding hearing over which you preside? 



Yes - 99% 



No - 1 % 



1068 



ACUS -- Survey of AUs for All Agencies 



How much of the TOTAL TIME spent doing your job is devoted to each of the 
following activities? Estimate the overall proportion of time, even if from week 
to week the exact proportions may vary. Ignore those activities that are not 
relevant to your work. 
{av£j 
20 a. Pretrial preparation, reading, study 

6 b. Conducting prehearing conferences and negotiations 

31 c. Presiding at formal hearings, rulings on motions 

32 d. Making decisions and writing decisions 

7 e. Travel 

9 f. General administrative duties, correspondence, professional 

meetings 
3 g. Conduct rule-making or other proceedings having generalized 

applicability 
12 h. Other 



To what extent do you conceive of your job as involving the following' 



a. Determining and marshaling facts 

b. Guaranteeing due process of law 

c. Making credibility determinations 

d. Applying agency policies and regulations 

e. Applying substantive expertise to problems 

f. Interpreting statutes 

g. Effecting the settlement of controversies 
h. Clarifying agency policies and regulations 
i. Making agency policy 

j , Educating the public 

k. Balancing interests 

1. Protecting the public interest over special interests 

m. Bringing efficiency to agency proceedings 

n. Helping to keep matters out of the federal courts 



Great 


Some 


Not 


Extent 


Extent 


Signif. 
Extent 


95% 


4% 


1% 


84% 


15% 


1% 


87% 


12% 


1% 


71% 


26% 


3% 


64% 


30% 


6% 


38% 


50% 


12% 


18% 


33% 


49% 


11% 


37% 


52% 


1% 


8% 


91% 


5% 


29% 


66% 


20% 


39% 


41% 


19% 


27% 


54% 


39% 


46% 


15% 


25% 


32% 


43% 



Rank the three most important of the above. 



1. A = 85% 

2. C = 71% 

3. B = 68% 



ACUS -- Survey of AUs for All Agencies 1069 



10. Rate your frequency of engaging in the following reading practices and patterns 
of communications. 

\Note : "N.A. " in Questions 10-15 means "Not Applicable. ^ 

Freq. Occ. Rare/Nev N.A. 

a. Read decisions of other presiding officials 26% 48% 23% 3% 

b. Read final agency decisions 54% 33% 11% 2% 

c. Read decisions of federal courts 54% 41% 4% 1% 

d. Read commercial services, industry 

publications 16% 38% 33% 13% 

e. Confer with superior about difficult cases 2% 19% 45% 34% 

f. Consult with other ALJs prior to hearing 4% 36% 52% 8% 

g. Consult with other AUs while case pending ...3% 30% 55% 12% 
h. Receive requests for confidential information .. 4% 9% 56% 31% 
i. Communications about your case with 

agency staff 22% 23% 39% 16% 

j. Communications about your case 

with those outside of the agency 3% 12% 57% 28% 

k. Make suggestions to agency for policy changes 2% 22% 60% 16% 
1. Make suggestions to agency for 

procedural changes 4% 33% 52% 11% 

m. Talk with individual members 

of private bar about agency procedures 3% 35% 51% 11% 

n. Disqualify yourself from hearing a case — % 11% 85% 4% 

o. Attend professional meetings or seminars 8% 65% 26% 1% 

11. With respect to the record or file you receive from another determination level, 
the record— 

Freq. Occ. Rare/Nev N.A. 

a. Is not adequate to support the decision 

at the other level 39% 35% 6% 20% 

b. Does not adequately prepare me for my 

hearing 44% 29% 10% 17% 

c. Would be improved by staff review before 

transmission 23% 30% 17% 30% 

d. Would be improved if updated before 

transmission 42% 23% 11% 24% 

e. Should have clearer and more thorough 

expert opinions 41% 27% 11% 21% 

f. Is better when a party is represented 51% 19% 9% 21% 



1070 ACUS - Survey of AUs for All Agencies 



Freq. Occ. Rare/Nev N.A. 

g. Would be improved if the other level 

had been more thorough in obtaining 

information from 

the party 45% 27% 9% 199t 

h. Other suggestion 24% 16% 16% 44% 

12. In hearing cases, how often do you engage in any of following practices? 

Freq. Occ. Rare/Nev N.A. 

a. Prehearing conferences 25% 

b. Order depositions 6% 

c. Require experts 60% 

d. Request additional evidence 63% 

e. Request issue briefs 28% 

f. Authorize reply briefs 17% 

g. Go "off record" 10% 

h. IN CAMERA proceeding 6% 

i. Question witness directly 84% 

j. Call own witnesses 43% 

k. Certify interlocutory appeals 1 % 

1. Certify record to agency head for 

decision (without making initial decision) 1% 3% 42% 54% 

m. Admit evidence for "whatever it may be 

worth" 22% 

n. Receiving "testimony" in writing 38% 

o. Deliver decisions orally 4% 

p. Grant summary judgment 3 % 

13. After your initial or recommended decision has been written, how often do you 
do any of the following things? 

Freq. Occ. Rare/Nev N.A. 

a. Participate in oral argument before 

review board or agency head — % --% 32% 68% 

b. Talk with news media about your decision --% 1% 58% 41% 

c. Supply written clarification of 

decision for agency staff 4% 4% 52% 40% 



36% 


37% 


2% 


17% 


64% 


13% 


19% 


17% 


4% 


24% 


12% 


1% 


47% 


24% 


1% 


24% 


36% 


23% 


40% 


47% 


3% 


18% 


52% 


24% 


14% 


1% 


1% 


18% 


32% 


7% 


7% 


42% 


50% 



37% 


37% 


4% 


38% 


22% 


2% 


15% 


62% 


19% 


26% 


30% 


41% 



ACUS -- Survey of AUs for All Agencies 1071 



Freq. Occ. Rare/Nev N.A. 

d. Talk or meet with agency staff to 

explain your decision 1% 8% 51% 40% 

e. Study appeal briefs submitted to review 

board or agency head 3% 15% 47% 35% 

f. Help prepare documents or questions to 

aid agency head or review board in hearing 

cases on appeal 1% 1% 44% 54% 

g. "Observe oral argument before review 

board or agency head ~% 1% 47% 52% 

h. Assist in writing of final agency 

decision, order, report 14% 3% 34% 49% 

14. Do any of the following problems arise in your work, and, if so, to what extent? 

Freq. Occ. Rare/Nev N.A. 

a. Delay in proceedings 41% 54% 5% — % 

b. Ambiguity in the law you must apply 19% 61% 19% 1% 

c. Too great a caseload 34% 45% 20% 1% 

d. Cases overly complex in technical sense 9% 35% 53% 3% 

e. Lack of direction from agency about policies... 9% 35% 46% 10% 

f. Lack of agency standards for review of 

ALdecisions 20% 25% 43% 12% 

g. Pressure from agency for faster decisions 40% 28% 28% 4% 

h. Pressure from agency for different decisions ... 8% 13% 63% 16% 
i. Review of your decisions by persons you 

think unquaUfied 33% 29% 30% 8% 

j. Lack of procedural uniformity among 

agencies 10% 13% 33% 43% 

k. Lack of procedural uniformity within 

agency for different cases 11% 23% 48% 18% 

1. Too close supervision of work 4% 7% 60% 29% 

m. Threats to independence of judgment 20% 14% 48% 18% 

n. Other 28% 19% 23% 30% 



1072 ACUS -- Survey of AUs for All Agencies 



15. Everyone occasionally feels bothered by certain kinds of things in their work. 
Below is a list of things that might sometimes bother AUs. Please indicate how 
frequently you feel bothered by each of them. 

Freq. Occ. Rare/Nev N.A. 

a. Feeling that your caseload burden may 

interfere with the quality of 

yourwork 29% 40% 30% 1% 

b. Feeling that you have too little 

authority to carry out the responsibilities 

assigned to you 22% 27% 47% 4% 

c. Feeling that you can't get your work 

out 12% 31% 53% 4% 

d. Thinking that there are too many reviews 

of your work by agency officials 12% 22% 55% 11% 

e. Feeling that you have to do things in 

your work that are against your better 

judgment 11% 23% 57% 9% 

f. Feeling that your job tends to interfere 

with your family life 2% 16% 73% 9% 

g. Feeling that you're not qualified to 

handle your work -% 2% 78% 9% 

h. Feeling that you have too heavy a 

workload 17% 38% 41% 4% 

i. Thinking that agency officials who 

review your work aren't nearly as 

qualified as you are 29% 33% 31% 7% 

j. Thinking that others who perform your 

type of work (e.g., District Court Judges) 

are accorded more deference than 

youare 38% 32% 26% 4% 

k. Feeling that non-AU adjudicators are 

asked to perform AU work at your agency 

or other agencies 19% 20% 43% 18% 



ACUS -- Survey of AUs for All Agencies 1073 



16. In reaching your decisions, how important do you consider the following factors? 
[Note : "N.A. " in this question means 'Not Appropriate to Consider. T 

Very Somewhat Not N.A. 

a. Applicable statutes 94% 6% 0.3% — 

b. Published agency regulations 95% 4% 1% — 

c. Federal court precedents 85% 14% 1% 0.2% 

d . Published agency opinions or decisions 68 % 27 % 3 % 2 % 

e. Executive Orders 22% 22% 28% 28% 

f. Staff position as outlined in brief 7% 36% 31% 26% 

g. Decisions of other presiding officials 6% 33% 38% 23% 

h. Public statements or speeches by agency 

officials 0.3% 5% 42% 53% 

i. Private statements by agency officials 1% 3% 36% 61% 

j. Statements by members of Congress 2% 5% 38% 55% 

k. Your perception of agency policy goals 11% 38% 28% 23% 

1. Your idea of what serves the public interest .... 23 % 35% 23% 19% 

m. Your own standards of fairness 49% 33% 9% 9% 

n. Public opinion 2% 9% 37% 52% 

o. Your evaluation of the facts of a case 99% 0.5% 0.3% 0.2% 

p. Your evaluation of documentary evidence 99% 1% 0.2% 0.2% 

q. Your evaluation of written "testimony" 76% 17% 4% 3% 

Rank the three most important of the above. 

1. O = 78% 

2. A = 58% 

3. B = 53% 

17. How important are the following as qualities which should be sought in 
candidates for positions as ALJs? [Note: "N.A. " in this question means "Not 
Appropriate to Consider. ^ 

Very Somewhat Not N.A. 

a. Integrity 99.5% 0.3% 0.2% — 

b. QuaUty of legal education 53% 42% 4% 1% 

c. Experience practicing administrative law 28% 52% 20% 0.7% 

d. Judicial temperament 93% 7% 0.5% — 

e. Experience in substantive area of law 28% 48% 24% — 

f. Neat personal appearance 23% 60% 15% 2% 

g. Senseofhumor 18% 55% 20% 7% 

h. Trial experience 72% 23% 5% — 

i. Technical expertise 24% 53% 21% 2% 

j. Writing ability 72% 27% 1% 0.5% 



1074 ACUS -- Survey of AUs for All Agencies 



Veo Somewhat Not N.A. 

k. Public speaking ability 20% 57% 20% 3% 

1. Analytical skill and reasoning ability 98% 1.5% 0.2% 0.2% 

18. When you underwent your qualification and selection process for your 
appointment as an ALJ, how burdensome did you find the following aspects of 
the process? [Note: "N.A. " in this question means "Not Applicable. "] 

Very Somewhat Not N.A. 

a. Completing the OPM/CSC supplemental 

qualifications statement 43% 37% 18% 2% 

b. Providing references for the personal 

reference inquiry by OPM/CSC 12% 40% 48% 0.2% 

c. Completing the written decision test 

for OPM/CSC 10% 39% 50% 1% 

d. Completing the panel interview for 

OPM/CSC 6% 23% 70% 1% 

e. Undergoing interviews, etc. by selecting 

agency 3% 19% 72% 6% 

19. Do you think the selection criteria used for AUs is relevant to duties actually 
performed? 

Very Somewhat Not 

52% 43% 5% 

20. How important were the following factors in your decision to become an ALJ? 

Very Somewhat Not 

a. Independence of job 89% 9% 2% 

b. Challenge of job 78% 30% 2% 

c. Salary 39% 50% 10% 

d. Prestige of position 34% 53% 14% 

e. Enjoyment of government service 27% 48% 25% 

f. Perquisites of office 7% 34% 60% 

g. Commitment to policy goals 9% 37% 55% 

h. Desire to have influence 8% 29% 63% 

i. Unhappiness with previous position 8 % 27 % 65 % 

j. Desire to travel 3% 23% 74% 

k. Experience helpful for further 

advancement in agency 4% 9% 87% 

1. Other 48% 34% 48% 



ACUS -- Survey of AUs for All Agencies 



1075 



21. How would you rate the following descriptions in terms of them being 
appropriate characterizations of the role of an ALJ? 



Very Somewhat Not 

a. Judge/Adjudicator 96% 3% 1% 

b. Important 62% 27% 12% 

c. Independent 90% 9% 1% 

d. Decision-maker 94% 5% 1% 

e. Fact-fmder 91% 8% 1% 

f. Wearer of "Three Hats" 39% 27% 34% 

g. Cog 3% 19% 78% 

h. Referee. 4% 25% 71% 

22. How satisfied are you with the following aspects of your present position? 

Very Somewhat Not 

a. Nature of duties 81% 17% 1% 

b. Conditions of employment 47% 37% 16% 

c. Substantive area of law in which you work ....63% 34% 4% 

d. Overall satisfaction 65% 32% 3% 

23. How serious are the following problems for ALJs? 

Very Somewhat Not 

a. Agency interference 26% 35% 39% 

b. Need for independence 59% 19% 22% 

c. Lack of status; poor image 25% 45% 30% 

d. Inadequacy of hearing facilities & staff 

support 43% 41% 17% 

e. Poor salary; lack of prerequisites 11% 36% 53% 

f. Compromise of formal procedures 13% 40% 48% 

g. Mediocrity of some ALJs 17% 56% 27% 

h. Need for increase in judicial powers 41% 35% 24% 

i. Need for separation from the agency 57% 22% 21% 

j. Veterans being given preference in the 

selection process 20% 25% 55% 

k. Absence of independent corps of ALJs 54% 22% 24% 



1076 ACUS -- Survey of AUs for All Agencies 



24. To what extent are the following practices appropriate for administrative law 
judges? 

Very Somewhat Not 

a. Taking active role in developing the record 

inacase 69% 24% 6% 

b. Talking with news media about the case 

while hearing is in progress 0.2% 1% 99% 

c. Talking with news media about the case 

after your decision has been made 1% 7% 93% 

d. Talking with news media about the case 

after agency decision is final 1% 8% 91% 

e. Having lunch or other social contacts 

with agency staff attorneys 7% 39% 53% 

f. Having lunch or other social contacts with 

private attorneys who practice 

before your agency 2% 30% 69% 

g. Suggesting procedural changes to agency 38% 51% 11% 

h. Suggesting changes in substantive policy 

to agency 22% 50% 28% 

i. Urging changes in legislation affecting AUs... 54% 37% 9% 

j. Suggesting other proceedings, investigations, 

or studies you think your agency 

should conduct 27% 48% 24% 

25. How would you classify the nature of your primary professional experience 
before you became an ALJ? 

(a) 36% Private 

48% Federal Government 

16% State or Local Government 

(b) 79% Litigation 

8% Advisory 
0.4% Transactional 
12% Examiner or Other Adjudicator 

26. 94% Male 6% Female 



ACUS -- Survey of AUs for All Agencies 1077 



27. Racial/Ethnic Category: (choose one) 

1% Asian or Pacific Islander 1% Black, not of Hispanic origin 
3% Hispanic 1% American Indian or Alaskan Native 
94% White, not of Hispanic origin 

28. Did you receive veteran's preference for your appointment as an ALJ? 

_65_ Yes 36 No 

29. Government Service Classification 

AL-3 10% A 18% B 8% C 36% D 14% E 10% F 
AL-2 _4% 
AL-1 1% 

30. In comparison to Federal Judges, do you think you have? 

Greater/More The Same Lesser 

a. Authority 1% 2% 97% 

b. Prestige 0.2% 1% 99% 

c. Freedom in reaching a decision 2% 60% 39% 

d. Complexcases 7% 45% 48% 

e. Caseload burden 31% 44% 25% 

f. Duty to be bound by agency policy 71% 25% 4% 

g. Duty to follow rules of evidence 1% 45% 54% 

h. Impact on public poUcy 4% 23% 73% 

i. Independence 1% 39% 60% 

31. In comparison to non-ALJ adjudicators, do you think you have? 

Greater/More The Same Lesser 

a. Authority 87% 10% 2% 

b. Prestige 87% 11% 2% 

c. Freedom in reaching a decision 87% 12% 2% 

d. Complexcases 78% 21% 1% 

e. Caseload burden 56% 38% 6% 

f. Duty to be bound by agency policy 13% 55% 32% 

g. Duty to follow rules of evidence 57% 40% 3% 

h. Impact on public policy 53% 42% 6% 

i. Independence 88% 9% 3% 

32. What undergraduate institution did you attend? 246 different schools 

33. Degree Received: 68% B.A. 32% B.S. 



1078 ACUS -- Survey of AUs for All Agencies 

34. Major: 81 different majors 

35. Did you attend law school? If no, skip to question 39. 

99.5% yes 0.2% no 
What law school did you attend? Many different schools 

36. What was your approximate rank in your law school class? 

23% a. Top 10% 
35% b. Top 25% 
35% c. Upper half 
7% d. Lower half 

37. Were you a member of law review? 17% yes 83% no 

38. Have you had any graduate training other than law school? 

28% yes 72% no 

39. If you have had additional graduate work, what was your field of study? 

67 different fields 

40. Please give us the benefit of any observations that will help in understanding 
your work. (Comments may be written on the back of this page, or an additional 
sheet may be attached.) 



ACUS - Survey of SSA AUs 1079 



Appendix IV B 



Survey of 
SOCIAL SECURITY ADMINISTRATION ADMINISTRATIVE LAW JUDGES 

This questionnaire is a part of a study of the practices and attitudes of 
Administrative Judges ("AJs") and Administrative Law Judges ("ALJs").' 

Please answer each question in the space provided and RETURN THE 
COMPLETED FORM WITHIN ONE WEEK. If you have additional comments, 
please include them. The anonymity of respondents will be preserved. 

1 . Type of Function: 

Civil Rights Enforcement 
Health & Safety 
Environment 

Commodities & Securities 
Trade Regulations 
Labor Relations & Personnel 
Licensing & Rate-making 
Program Grants & Resource Management 
100% Individual Economic Support - SSA 

Individual Economic Support - All other 

2. Number of years you have been an AU. 



0-3 39% 16-18 10% 

4-6 13% 19-21 9% 

7-9 3% 22-24 1% 

10-12 16% 25-27 1% 

13-15 7% 27+ 1% 



'Most of the questions in this survey duplicate or parallel those of a survey of ALJs by Paula 
P. Burger, Judges in Search of a Court: Characteristics, Functions, and Perceptions of 
Federal Administrative Law Judges (1984 & photo, reprint 1985, University Microfilms 
International). Other sources include United States General Accounting Office, Survey' of 
Administrative Law Operations; and Donna Price Cofer, Judges, Bureaucrats, and the 
Question of Independence (1985). 



1080 ACUS -- Survey of SSA AUs 



Number of years you have been an ALJ at your present agency. 

0-3 40% 16-18 9% 

4-6 14% 19-21 9% 

7-9 3% 22-24 1% 

10-12 17% 25-27 0.3% 

13-15 7% 28-1- 1% 

Number of agencies at which you have served as an AU. 

More than 4-0.3% 



1-92% 




3- 1% 


2- 6% 




4- 1% 


jr age. 








- 


Under 30 




- 


30-34 




2% 


34-39 




6% 


40-44 




25% 


45-49 




14% 


50-54 




18% 


55-59 




18% 


60^ 




17% 


65 & Over 



6. How would you describe your role in the administrative process? (See Appendix 
IV A. Survey of ALJs for All Agencies.) 

7a. Do the cases you decide come to you as appeals from another determination 
level? 

Yes -95% No -5% 

7b. If so, do you make your decision on the record or file made at this other level? 

Yes - 4% No - 96% 

7c. Or, do you make your decision based in whole or in part on a record made in an 
oral fact finding hearing over which you preside? 

Yes -99% No-1% 



ACUS -- Survey of SSA AUs 



1081 



8. How much of the TOTAL TIME spent doing your job is devoted to each of the 
following activities? Estimate the overall proportion of time, even if from week 
to week the exact proportions may vary. Ignore those activities that are not 
relevant to your work. 



(avg.) 
22% 

5% 
34% 
27% 

6% 

8% 



a. Pretrial preparation, reading, study 

b. Conducting prehearing conferences and negotiations 

c. Presiding at formal hearings, rulings on motions 

d. Making decisions and writing decisions ^ 

e. Travel 

f. General administrative duties, correspondence, professional 
meetings 

3% g. Conduct rule-making or other proceedings having generalized 

applicability 
10% h. Other 



To what extent do you conceive of your job as involving the following: 



Determining and marshaling facts 
Guaranteeing due process of law 
Making credibility determinations 
Applying agency policies and regulations 
Applying substantive expertise to problems 
Interpreting statutes 

Effecting the settlement of controversies 
Clarifying agency policies and regulations 
Making agency policy 
Educating the public 
Balancing interests 

Protecting the public interest over special interests 
m. Bringing efficiency to agency proceedings 
n. Helping to keep matters out of the federal courts 



Great 


Some 


Not 


Extent 


Extent 


Signif. 
Extent 


95% 


5% 


0.3% 


84% 


15% 


1% 


93% 


7% 


1% 


75% 


24% 


1% 


65% 


30% 


4% 


29% 


57% 


14% 


14% 


27% 


60% 


8% 


36% 


56% 


1% 


5% 


95% 


4% 


33% 


63% 


20% 


37% 


43% 


15% 


28% 


57% 


39% 


47% 


14% 


29% 


35% 


37% 



Rank the three most important of the above. 

1. A = 85% 

2. C = 79% 

3. B = 71% 



1082 



ACUS -- Survey of SSA AUs 



10. Rate your frequency of engaging in the following reading practices and patterns 
of communications. 



[Note : 'N.A. " in Questions 10-15 means 'Not Applicable. T 



Freq. Occ. Rare/Nev N.A. 



15% 
41% 
47% 

10% 
3% 

4% 



a. Read decisions of other presiding officials 

b. Read fmal agency decisions 

c. Read decisions of federal courts 

d. Read commercial services, industry 

publications 

e. Confer with superior about difficult cases 
i. Consult with other AUs prior to hearing 
g. Consult with other AUs while case pending 3% 
h. Receive requests for confidential information 5% 
i. Communications about your case with agency 

staff 30% 

j. Communications about your case with those 

outside of the agency 4 % 

k. Make suggestions to agency for policy changes 1 % 
1. Make suggestions to agency for procedural 

change 
m. Talk with individual members of private 

bar about agency procedures 
n. Disqualify yourself from hearing a case 
o. Attend professional meetings or seminars 



3% 



53% 
42% 
47% 

37% 
26% 
35% 
27% 
8% 

29% 

13% 
23% 

32% 



29% 3% 

16% 2% 

5% 0.3% 



39% 
45% 
55% 
60% 
59% 

33% 

60% 

62% 

55% 



13% 
29% 
6% 
10% 
28% 

7% 

23% 
13% 

10% 



3% 


36% 


50% 


8% 


0% 


14% 


83% 


3% 


6% 


65% 


28% 


1% 



11. With respect to the record or file you receive from another determination level, 
the record— 



a. Is not adequate to support the decision 
at the other level 

b. Does not adequately prepare me for my 

hearing 

c. Would be improved by staff review 

before transmission 

d. Would be improved if updated before 
transmission 

e. Should have clearer and more thorough 
expert opinions 

f Is better when a party is represented 



Freq. Occ. Rare/Nev N.A. 



51% 


42% 


6% 


1% 


56% 


36% 


9% 


0.3% 


30% 


37% 


20% 


13% 


56% 


29% 


9% 


6% 


55% 


33% 


11% 


2% 


61% 


25% 


11% 


3% 



ACUS -- Survey of SSA AUs 



1083 



Freq. Occ. Rare/Nev N.A. 



Would be improved if the other level had been 
more thorough in obtaining information 
from the party 59% 

Other suggestion 12% 



31% 
1% 



9% 
1% 



14% 



12. In hearing cases, how often do you engage in any of following practices? 

Freq. Occ. Rare/Nev N.A. 

a. Prehearing conferences 

b. Order depositions 

c. Require experts 

d. Request additional evidence 

e. Request issue briefs 

f. Authorize reply briefs 

g. Go "off record" 
h. IN CAMERA proceeding 
i. Question witness directly 
j. Call own witnesses 
k. Certify interlocutory appeals 
1. Certify record to agency head for decision 

(without making initial decision) 
m. Admit evidence for 

"whatever it may be worth" 
n. Receiving "testimony" in writing 
o. Deliver decisions orally 
p. Grant summary judgment 



7% 


41% 


50% 


2% 


1% 


14% 


71% 


14% 


80% 


19% 


1% 


- 


85% 


14% 


- 


— 


12% 


56% 


31% 


1% 


5% 


21% 


44% 


31% 


6% 


31% 


60% 


3% 


6% 


9% 


53% 


30% 


96% 


3% 


1% 


0.3% 


61% 


21% 


13% 


5% 


1% 


36% 


62% 


_ 



2% 



40% 



58% 



29% 


41% 


26% 


4% 


40% 


43% 


16% 


1% 


3% 


16% 


62% 


19% 


2% 


19% 


27% 


52% 



1084 ACUS -- Survey of SSA AUs 



13. After your initial or recommended decision has been written, how often do you 
do any of the following things? 

Freq. Occ. Rare/Ne? N.A. 

a. Participate in oral argument before review 

board or agency head — 

b. Talk with news media about your decision — 

c. Supply written clarification of decision for 

agency staff 6% 

d. Talk or meet with agency staff to explain your 

decision 2% 

e. Study appeal briefs submitted to review board or 

agency head 3 % 

f. Help prepare documents or questions to aid 
agency head or review board in hearing 
cases on appeal 1 % 

g. Observe oral argument before review board or 

agency head — 

h. Assist in writing of final agency decision, 

order, report 20% 

14. Do any of the following problems arise in your work, and, if so, to what extent? 

Freq. Occ. Rare/Nev N.A. 

a. Delay in proceedings 

b. Ambiguity in the law you must apply 

c. Too great a caseload 

d. Cases overly complex in technical sense 

e. Lack of direction from agency about policies 

f. Lack of agency standards for review of ALJ 
decisions 

g. Pressure from agency for faster decisions 
h. Pressure from agency for different decisions 
i. Review of your decisions by persons you think 

unqualified 
j. Lack of procedural uniformity among agencies 12% 
k. Lack of procedural uniformity within agency 

for different cases 
1. Too close supervision of work 
m. Threats to independence of judgment 
n. Other 



- 


28% 


71% 


- 


49% 


50% 


6% 


48% 


40% 


12% 


48% 


37% 


10% 


47% 


38% 


).3% 


42% 


57% 


- 


40% 


59% 


4% 


27% 


47% 



45% 


51% 


4% 


- 


12% 


65% 


22% 


- 


41% 


42% 


15% 


1% 


8% 


37% 


52% 


2% 


9% 


38% 


47% 


4% 


27% 


28% 


36% 


6% 


54% 


28% 


16% 


1% 


10% 


16% 


61% 


10% 


43% 


31% 


22% 


2% 


sl2% 


14% 


27% 


44% 


13% 


25% 


44% 


15% 


3% 


8% 


65% 


22% 


21% 


12% 


40% 


10% 


12% 


2% 


3% 


10% 



ACUS - Survey of SSA AUs 



1085 



15. Everyone occasionally feels bothered by certain kinds of things in their work. 
Below is a list of things that might sometimes bother ALJs. Please indicate how 
frequently you feel bothered by each of them. 

Freq. Occ. Rare/Nev N.A. 



Feeling that your caseload burden may 

interfere with the quality of your work. 36% 

Feeling that you have too little authority to carry 



out the responsibilities assigned to you. 27% 

c. Feeling that you can't get out your work. 15% 

d. Thinking that there are too many reviews 
of your work by agency officials. 14% 

e. Feeling that you have to do things in your 
work that are against your better judgment. 13% 

f. Feeling that your job tends to interfere with 
your family life. 3% 

g. Feeling that you're not qualified to handle 
your work. 1% 

h. Feeling that you have too heavy a work load. 19% 
i. Thinking that agency officials who review your 

work aren't nearly as qualified as you are. 34% 
j. Thinking that others who perform your type of 

work (e.g., District Court Judges) are accorded 

more deference than you are. 43% 30% 22% 

k. Feeling that non-AU adjudicators are asked to 

perform AU work at your agency or other 

agencies. 23% 21% 39% 



42% 

32% 
34% 

29% 

29% 

18% 

79% 

41% 

35% 



21% 

39% 
47% 

50% 

52% 

71% 

18% 
35% 

26% 



1% 

1% 
2% 

6% 

5% 
7% 

4% 
4% 

4% 

14% 



1086 ACUS -- Survey of SSA AUs 



16. In reaching your decisions, how important do you consider the following factors? 
[Note: "N.A. ' in this question means "Not Appropriate to Consider. T 



a . Applicab le statutes . 

b. Published agency regulations 

c. Federal court precedents 

d. Published agency opinions or decisions 

e. Executive Orders 

f. Staff position as outlined in brief 

g. Decisions of other presiding officials 
h. Public statements or speeches by 

agency officials 
i. Private statements by agency officials 
j. Statements by members of Congress 
k. Your perception of agency policy goals 
1. Your idea of what serves the public interest 
m. Your own standards of fairness 
n. Public opinion 

o. Your evaluation of the facts of a case 
p. Your evaluation of documentary evidence 
q. Your evaluation of written "testimony" 

Rank the three most important of the fibove. 

1. O = 82% 

2. B = 58% 

3. A = 55% 



Very Somewhat Not N.A. 



92% 


8% 


1% 


— 


96% 


4% 


— 


— 


85% 


14% 


1% 


0.3% 


58% 


35% 


5% 


2% 


20% 


21% 


29% 


30% 


4% 


32% 


32% 


32% 


2% 


27% 


42% 


29% 


0.3% 


5% 


45% 


50% 


1% 


4% 


39% 


57% 


1% 


6% 


41% 


52% 


11% 


40% 


30% 


20% 


21% 


35% 


25% 


19% 


48% 


37% 


8% 


8% 


2% 


11% 


40% 


47% 


99% 


0.3% 


0.3% 


0.3% 


99% 


1% 


0.3% 


0.3% 


76% 


20% 


3% 


2% 



ACUS -- Survey of SSA AUs 1087 



17. How important are the following as qualities which should be sought in 
candidates for positions as AUs? [Note : "N.A. " in this question means "Not 
Appropriate to Consider. "] 

Very Somenliat Not N.A. 

a. Integrity 

b. Quality of legal education 

c. Experience practicing administrative law 

d. Judicial temperament 

e. Experience in substantive area of law 

f. Neat personal appearance 

g. Sense of humor 
h. Trial experience 
i. Technical expertise 
j. Writing ability 
k. Public speaking ability 
1. Analytical skill and reasoning ability 

18. When you underwent your qualification and selection process for your 
appointment as an ALJ, how burdensome did you fmd the following aspects of 
the process? [Note : "N.A. " in this question means "Not Applicable. "] 

Very Somewhat Not N.A. 

a. Completing the OPM/CSC supplemental 

qualifications statement 41% 37% 20% 1% 

b. Providing references for the personal 

reference inquiry by OPM/CSC 12% 39% 50% - 

c. Completing the written decision test 

for OPM/CSC 11% 39% 50% 0.3% 

d. Completing the panel interview for OPM/CSC 7% 23% 70% 1% 

e. Undergoing interviews, etc. by selecting 

agency 4% 18% 73% 6% 

19. Do you think the selection criteria used for ALJs is relevant to duties actually 
performed? 

Very Somewhat Not 

54% 43% 4% 



100% 


- 


- 


0.3% 


52% 


43% 


4% 


1% 


26% 


51% 


22% 


1% 


94% 


6% 


- 


0.3% 


28% 


44% 


28% 


0.3% 


25% 


59% 


14% 


2% 


17% 


56% 


21% 


5% 


73% 


22% 


5% 


— 


28% 


53% 


18% 


1% 


64% 


35% 


1% 


1% 


21% 


58% 


18% 


2% 


98% 


1% 


— 


0.3% 



1088 



ACUS -- Survey of SSA AUs 



20. How important were the following factors in your decision to become an ALJ ' 



Very Somewhat Not 



Independence of job 
Challenge of job 
Salary 

Prestige of position 
Enjoyment of government service 
Perquisites of office 
Commitment to policy goals 
Desire to have influence 
Unhappiness with previous position 
Desire to travel 
Experience helpful for further 
advancement in agency 
Other 



87% 


12% 


2% 


75% 


23% 


2% 


42% 


48% 


10% 


33% 


53% 


14% 


26% 


48% 


27% 


8% 


35% - 


58% 


9% 


40% 


51% 


7% 


29% 


64% 


8% 


30% 


62% 


3% 


21% 


77% 


4% 


10% 


86% 


50% 


5% 


45% 



21. How would you rate the following descriptions 
appropriate characterizations of the role of an AU? 



a. Judge/ Adjudicator 

b. Important 

c. Independent 

d. Decision-maker 

e. Fact-fmder 

f. Wearer of "Three Hats* 
g- Cog 

h. Referee 



terms of them being 



Very 


Somewhat 


Not 


97% 


3% 


1% 


62% 


28% 


10% 


87% 


12% 


1% 


94% 


5% 


0.3% 


92% 


8% 


1% 


53% 


33% 


14% 


4% 


20% 


76% 


3% 


21% 


76% 



22. How satisfied are you with the following aspects of your present position? 

Very Somewhat Not 

a. Nature of duties 79% 

b. Conditions of employment 42% 

c. Substantive area of law in which you work 57% 

d. Overall satisfaction 61% 



19% 


1% 


40% 


19% 


39% 


4% 


36% 


4% 



Very 


Somewhat 


Not 


32% 


41% 


27% 


66% 


20% 


15% 


27% 


46% 


27% 


50% 


38% 


13% 


10% 


35% 


55% 


16% 


44% 


40% 


19% 


57% 


23% 


50% 


32% 


18% 


68% 


23% 


9% 


19% 


26% 


55% 


67% 


22% 


12% 



ACUS -- Survey of SSA AUs 1089 



23. How serious are the following problems for AUs? 

a. Agency interference 

b. Need for independence 

c. Lack of status; poor image 

d. Inadequacy of hearing facilities & staff 

support 

e. Poor salary; lack of prerequisites 

f. Compromise of formal procedures 

g. Mediocrity of some ALJs 
h. Need for increase in judicial powers 
i. Need for separation from the agency 
j. Veterans being given preference in the 

selection process 
k. Absence of independent corps of AUs 

24. To what extent are the following practices appropriate for administrative law 
judges? 

Very Somewhat Not 

a. Taking active role in developing 

the record in a case 77% 17% 6% 

b. Talking with news media about the case while 

hearing is in progress - 0.3% 100% 

c. Talking with news media about the case 

after your decision has been made 0.3% 3% 97% 

d. Talking with news media about the case after 

agency decision is fmal 1% 4% 95% 

e. Having lunch or other social contacts with 

agency sta ff attorneys 1 1 % 49 % 4 1 % 

f. Having lunch or other social contacts with private 

attorneys who practice before your agency 

g. Suggesting procedural changes to agency 
h. Suggesting changes in substantive policy 

to agency 
i. Urging changes in legislation affecting AUs 
j. Suggesting other proceedings, investigations, or 

studies you think your agency should 

conduct. 34% 51% 15% 



3% 


32% 


65% 


42% 


49% 


7% 


25% 


56% 


19% 


57% 


36% 


7% 



1090 ACUS -- Survey of SSA AUs 



25. How would you classify the nature of your primary professional experience 
before you became an ALJ? 

(a) 43% Private 

38% Federal Government 
20% State or Lx)cal Government 

(b) 79% Litigation 

8% Advisory 
1% Transactional" 
12% Examiner or Other Adjudicator 

26. 94% Male 6% Female 

27. Racial/Ethnic Category: (choose one) 

1% Asian or Pacific Islander 1% Black, not of Hispanic origin 
4% Hispanic 1% American Indian or Alaskan Native 
94% White, not of Hispanic origin 

28. Did you receive veteran's preference for your appointment as an ALJ? 

66 Yes _34_ No 

29. Government Service Classification 

AL-3 14% A 27% B 10% C 40% D 5% E 1% F 

AL-2 _1% 
AL-1 1% 

30. In comparison to Federal Judges, do you think you have? 

Greater/More The Same Lesser 



a. 


Authority 


1% 


2% 


97% 


b. 


Prestige 


- 


1% 


99% 


c. 


Freedom in reaching a decision 


1% 


53% 


46% 


d. 


Complex cases 


3% 


40% 


57% 


e. 


Caseload burden 


43% 


44% 


13% 


f 


Duty to be bound by agency policy 


76% 


22% 


3% 


g- 


Duty to follow rules of evidence 


1% 


39% 


60% 


h. 


Impact on public policy 


4% 


17% 


79% 


i. 


Independence 


1% 


30% 


69% 



86% 


11% 


3% 


86% 


11% 


3% 


85% 


13% 


2% 


75% 


24% 


1% 


59% 


35% 


6% 


12% 


52% 


36% 


52% 


44% 


4% 


48% 


45% 


7% 


85% 


11% 


4% 



ACUS -- Survey of SSA AUs 1091 

31. In comparison to non-AU adjudicators, do you think you have? 

Greater/More The Same Lesser 

a. Authority 

b. Prestige 

c. Freedom in reaching a decision 

d. Complex cases 

e. Caseload burden 

f. Duty to be bound by agency policy 

g. Duty to follow rules of evidence 
h. Impact on public policy 
i. Independence 

32. What undergraduate institution did you attend? (Sec Appendix IV A. Survey of 
ALJs for All Agencies.) 

33. Degree Received: 66% B.A. 34% B.S. 

34. Major: (Sec Appendix IV A, Survey of AUs for All Agencies.) 

35. Did you attend law school? If no, skip to question 39. 

99.5% yes 0.3% no 

What law school did you attend? (See Appendix IV A. Survey of AUs for All 
Agencies.) 

36. What was your approximate rank in your law school class? (See Appendix 
IV A. Survey of AUs for All Agencies.) 

37. Were you a member of law review? 16% yes 84% no 

38. Have you had any graduate training other than law school? 28% yes 72% no 

39. If you have had additional graduate work, what was your field of study? (Sec 
Appendix IV A. Survey of AUs for All Agencies.) 

40. Please give us the benefit of any observations that uill help in understanding 
your work. (Comments may be written on the back of this page, or an additional 
sheet may be attached.) (Sec Appendix IV A. Survey of AUs for All 
Agencies.) 



1092 ACUS -- Survey of SSA AUs 



Appendix IV C 

Survey of 
NON-SOCIAL SECURITY ADMINISTRATION ADMINISTRATIVE LAW 

JUDGES 

This questionnaire is a part of a study of the practices and attitudes of 
Administrative Judges ("AJs") and Administrative Law Judges ("ALJs").' 

Please answer each question in the" space provided and RETURN THE 
COMPLETED FORM WITHIN ONE WEEK. If you have additional comments, 
please include them. The anonymity of respondents will be preserved. 

1. Type of Function: 

4% Civil Rights Enforcement 

20% Health & Safety 

2% Environment 

3 % Commodities & Securities 

5% Trade Regulations 

25% Labor Relations & Personnel 

14% Licensing & Rate-making 

10% Program Grants & Resource Management 

— Individual Economic Support - SSA 

20% Individual Economic Support - All other 

2. Number of years you have been an AU. 

0-3 8% 

4-6 5% 

7-9 5% 
10-12 16% 
13-15 20% 



16-18 


20% 


19-21 


14% 


22-24 


4% 


25-27 


3% 


27 + 


4% 



'Most of the questions in this survey duplicate or parallel those of a survey of AUs by Paula 
P. Burger, Judges in Search of a Court: Characteristics, Functions, and Perceptions of 
Federal ADMlNiyrRATrvE Law Judges (1984 & photo, reprint 1985, University Microfilms 
International). Other sources include United States General Accounting Office, Survey of 
Administrative Law Operations; and Donna Price Cofer, Judges, Bureaucrats, and the 
Question of Independence (1985). 



ACUS - Survey of Non-SSA AUs 1093 



Number of years you have been an ALJ at your present agency. 

0-3 16% 16-18 17% 

4-6 9% 19-21 8% 

7-9 3% 22-24 2% 

10-12 22% 25-27 1% 

13-15 16% 28+ 2% 

Number of agencies at which you have served as an ALJ. 

More than 4 - 3 % 





1 -52% 


3 


-8% 




2-34% 


4- 


-2% 


5. 


Your age. 








— 


Under 30 






0.4% 


30-34 






— 


34-39 






2% 


40-44 






12% 


45-49 






20% 


50-54 






20% 


55-59 






26% 


60-^ 






20% 


65 & Over 





6. How would you describe your role in the administrative process? (Sec 
Appendix IV A. Survey of AUs for All Agencies.) 



7a. Do the cases you decide come to you as appeals from another determination 
level? 



Yes -47% No -53% 

7b. If so, do you make your decision on the record or file made at this other level? 

Yes -7% No -93% 

7c. Or, do you make your decision based in whole or in part on a record made in an 
oral fact fmding hearing over which you preside? 

Yes -98% No -2% 



1094 



ACUS -- Survey of Non-SSA AUs 



8. How much of the TOTAL TIME spent doing your job is devoted to each of the 
following activities? Estimate the overall proportion of time, even if from week 
to week the exact proportions may vary. Ignore those activities that are not 
relevant to your work. 

Pretrial preparation, reading, study 
Conducting prehearing conferences and negotiations 
Presiding at formal hearings, rulings on motions 
Making decisions and writing decisions 
Travel 

General administrative duties, correspondence, professional meetings 
Conduct rule-making or other proceedings having generalized 
applicability 
3% h. Other 



:avg.) 




7% 


a. 


14% 


b. 


7% 


c. 


25% 


.d. 


39% 


e. 


6% 


f. 


8% 


g- 



To what extent do you conceive of your job as involving the following? 



a. Determining and marshaling facts 

b. Guaranteeing due process of law 

c. Making credibility determinations 

d. Applying agency policies and regulations 

e. Applying substantive expertise to problems 

f. Interpreting statutes 

g. Effecting the settlement of controversies 
h. Clarifying agency policies and regulations 
i. Making agency policy 

j. Educating the public 

k. Balancing interests 

1. Protecting the public interest over special interests 

m. Bringing efficiency to agency proceedings 

n. Helping to keep matters out of the federal courts 



Great 


Some 


Not 


Extent 


Extent 


Signif. 
Extent 


97% 


3% 


0.4% 


84% 


14% 


2% 


78% 


20% 


2% 


65% 


29% 


6% 


61% 


29% 


11% 


53% 


37% 


10% 


27% 


43% 


31% 


16% 


37% 


46% 


2% 


13% 


84% 


5% 


24% 


71% 


21% 


41% 


38% 


25% 


24% 


51% 


40% 


42% 


18% 


21% 


26% 


54% 



Rank the three most important of the above. 

1. A = 84% 

2. B = 63% 

3. C = 58% 



ACUS -- Survey of Non-SSA AUs 



1095 



10. Rate your frequency of engaging in the following reading practices and patterns 
of communications. 

{Note: "N.A. " in Questions 10- J 5 means "Not Applicable. T 



a. Read decisions of other presiding officials 

b. Read final agency decisions 

c. Read decisions of federal courts 

d. Read commercial services, industry 

publications 

e. Confer with superior about difficult cases 

f. Consult with other ALJs prior to hearing 

g. Consult with other ALJs while case pending 
h. Receive requests for confidential information 
i. Communications about your case with agency 

staff 8% 

j. Communications about your case with those 

outside of the agency 3 % 

k. Make suggestions to agency for policy changes 2% 
1. Make suggestions to agency for procedural 

changes 5 % 

m. Talk with individual members of private bar 

about agency procedures 3% 

n. Disqualify yourself from hearing a case — 

o. Attend professional meetings or seminars 1 1 % 



Freq. 


Occ. 


Rare/Nev 


N.A, 


45% 


40% 


13% 


3% 


77% 


18% 


3% 


2% 


66% 


30% 


2% 


1% 


25% 


39% 


24% 


9% 


1% 


15% 


43% 


41% 


4% 


38% 


47% 


11% 


5% 


33% 


46% 


15% 


2% 


12% 


51% 


34% 



13% 

10% 
19% 

36% 



48% 

50% 

56% 

45% 



30% 

37% 

22% 

13% 



28% 


53% 


16% 


7% 


88% 


4% 


64% 


23% 


1% 



11. With respect to the record or file you receive from another determination level, 
the record: 



Freq. Occ. Rare/Nev N.A. 



a. Is not adequate to support the decision 

at the other level 

b. Does not adequately prepare me for my 
hearing 

c. Would be improved by staff review 

before transmission 

d. Would be improved if updated before 
transmission 

e. Should have clearer and more thorough 

expert opinions 

f. Is better when a party is represented 



16% 


20% 


5% 


50% 


22% 


15% 


9% 


44% 


9% 


16% 


10% 


55% 


15% 


11% 


10% 


55% 


15% 


14% 


8% 


53% 


30% 


6% 


3% 


50% 



1096 ACUS -- Survey of Non-SSA AUs 



Freq. Occ. Rare/Nev N.A. 

g. Would be improved if the other level had been 

more thorough in obtaining information 

from the party 18% 16% 7% 49% 

h. Other suggestion 4% - - 52% 

12. In hearing cases, how often do you engage in any of following practices? 

Freq. Occ. Rare/Nev N.A. 



a. 


Prehearing conferences 


57% 


28% 


15% 


1% 


b. 


Order depositions 


15% 


23% 


51% 


12% 


c. 


Require experts 


26% 


21% 


42% 


11% 


d. 


Request additional evidence 


26% 


41% 


31% 


3% 


e. 


Request issue briefs 


54% 


32% 


13% 


1% 


f. 


Authorize reply briefs 


37% 


30% 


23% 


9% 


g- 


Go "off record" 


18% 


57% 


23% 


1% 


h. 


IN CAMERA proceeding 


6% 


34% 


49% 


12% 


i. 


Question witness directly 


64% 


33% 


2% 


0.4% 


J- 


Call own witnesses 


13% 


13% 


62% 


11% 


k. 


Certify interlocutory appeals 


1% 


19% 


52% 


29% 


1. 


Certify record to agency head for decision 












(without making initial decision) 


1% 


5% 


43% 


48% 


m 


. Admit evidence for "whatever it may be 












worth" 


11% 


30% 


54% 


4% 


n. 


Receiving "testimony" in writing 


35% 


29% 


30% 


5% 


o. 


Deliver decisions orally 


4% 


15% 


62% 


18% 


P- 


Grant summary judgment 


4% 


38% 


36% 


- 



~ 


37% 


63% 


2% 


71% 


27% 


1% 


57% 


41% 


2% 


54% 


43% 


:2% 


45% 


29% 


- 


48% 


52% 


3% 


56% 


41% 



ACUS -- Survey of Non-SSA AUs 1097 



13. After your initial or recommended decision has been written, how often do you 
do any of the following things? 

Freq. Occ. Rare/Nev N.A. 

a. Participate in oral argument before review 

board or agency head — 

b. Talk with news media about your decision — 

c. Supply written clarification of decision for 

agency staff 0.4% 

d. Talk or meet with agency staff to explain your 

decision 0.4% 

e. Study appeal briefs submitted to review board or 

agency head 3% 22% 

f. Help prepare documents or questions to aid 

agency head or review board in hearing 
cases on appeal 

g. Observe oral argument before review board 

or agency head - 

h. Assist in writing of fmal agency decision, 

order, report 3% 0.4% 45% 51% 

14. Do any of the following problems arise in your work, and, if so, to what extent? 

Freq. Occ. Rare/Nev N.A. 

a. Delay in proceedings 34% 58% 7% - 

b. Ambiguity in the law you must apply 29% 55% 13% 0.4% 

c. Too great a caseload 21% 49% 28% 1% 

d. Cases overly complex in technical sense 9% 31% 54% 4% 

e. Lack of direction from agency about policies 7% 28% 43% 21% 

f. Lack of agency standards for review of ALJ 

decisions 9% 18% 51% 22% 

g. Pressure from agency for faster decisions 15% 28% 46% 9% 
h. Pressure from agency for different decisions 4% 5% 64% 24% 
i. Review of your decisions by persons you think 

unquaUfied 15% 25% 42% 15% 

j. Lack of procedural uniformity among agencies 7% 9% 40% 40% 
k. Lack of procedural uniformity within agency 

for different cases 7% 18% 50% 21% 

1. Too close supervision of work 4% 4% 51% 40% 

m. Threats to independence of judgment 8% 7% 51% 21% 

n. Other 6% 1% 8% 17% 



1098 ACUS - Survey of Non-SSA AUs 



15. Everyone occasionally feels bothered by certain kinds of things in their work. 
Below is a list of things that might sometimes bother ALJs. Please indicate how 
frequently you feel bothered by each of them. 

Freq. Occ. Rare/Nev N.A. 

a. Feeling that your caseload burden may interfere 

with the quality of your work. 16% 36% 44% 1% 

b. Feeling that you have too little authority to 

carry out the responsibilities assigned to you. 12% 18% 59% 8% 

c. Feeling that you can't get out your work. 7% 23% 61% 5% 

d. Thinking that there are too many reviews 

of your work by agency officials. 8% 10% 61% 18% 

e. Feeling that you have to do things in your 

work that are against your better judgment. 6% 13% 65% 13% 

f. Feeling that your job tends to interfere with 

your family life. 1% 11% 75% 11% 

g. Feeling that you're not qualified to handle 

your work. - 3% 73% 20% 

h. Feeling that you have too heavy a work load. 1 1 % 3 1 % 50% 5 % 

i. Thinking that agency officials who review your 

work aren't nearly as qualified as you are. 20% 29% 37% 11% 

j. Thinking that others who perform your type of 

work (e.g., District Court Judges) are accorded 

more deference than you are. 30% 34% 31% 4% 

k. Feeling that non-ALJ adjudicators are asked to 

perform ALJ work at your agency or other 

agencies. 11% 18% 47% 22% 



ACUS -- Survey of Non-SSA AUs 1099 



16. In reaching your decisions, how important do you consider the following factors? 
{Note : "N.A. ' in this question means "Not Appropriate to Consider. "] 



a. Applicable statutes 

b. Published agency regulations 

c. Federal court precedents 

d. Published agency opinions or decisions 

e. Executive Orders 

f. Staff position as outlined in brief 

g. Decisions of other presiding officials 
h. Public statements or speeches by 

agency officials 
i. Private statements by agency officials 
j. Statements by members of Congress 
k. Your perception of agency policy goals 
1. Your idea of what serves the public interest 
m. Your own standards of fairness 
n. Public opinion 

o. Your evaluation of the facts of a case 
p. Your evaluation of documentary evidence 
q. Your evaluation of written "testimony" 

Rank the three most important of the above. 

1. O = 72% 

2. B = 64% 

3. A = 45% 



Very Somewhat Not N.A. 



97% 


3% 


— 


— 


92% 


5% 


3% 


— 


84% 


14% 


2% 


— 


84% 


14% 


1% 


1% 


25% 


24% 


26% 


25% 


11% 


42% 


29% 


18% 


13% 


44% 


30% 


13% 


0.4% 


4% 


37% 


58% 


1% 


2% 


30% 


67% 


4% 


3% 


34% 


59% 


12% 


34% 


26% 


28% 


25% 


34% 


20% 


21% 


51% 


28% 


11% 


11% 


3% 


5% 


33% 


59% 


99% 


1% 


— 


— 


99% 


1% 


— 


— 


77% 


12% 


6% 


5% 



99% 


1% 


— 


— 


56% 


40% 


4% 


1% 


31% 


54% 


15% 


0.4% 


91% 


8% 


— 


1% 


29% 


54% 


16% 


1% 


19% 


62% 


16% 


3% 


19% 


54% 


19% 


8% 


69% 


25% 


6% 


— 


20% 


52% 


25% 


3% 


85% 


14% 


1% 


0.4% 


18% 


55% 


23% 


3% 



1 100 ACUS - Survey of Non-SS A AUs 



17. How important are the following as qualities which should be sought in 
candidates for positions as AUs? [Note: "N.A. " in this question means "Not 
Appropriate to Consider. "] 

Very Somewhat Not N.A. 

a. Integrity 

b. Quality of legal education 

c. Experience practicing administrative law 

d. Judicial temperament 

e. Experience in substantive area of law 

f. Neat personal appearance 

g. Sense of humor 
h. Trial experience 
i. Technical expertise 
j. Writing ability 
k. Public speaking ability 
1. Analytical skill and reasoning ability 98% 1% 0.4% ~ 

18. When you underwent your qualification and selection process for your 
appointment as an ALJ, how burdensome did you fmd the following aspects of 
the process? [Note: "N.A. " in this question means "Not Applicable. *] 

Very Somewhat Not N.A. 

a. Completing the OPM/CSC supplemental 

qualifications statement 45% 35% 15% 5% 

b. Providing references for the personal 

reference inquiry by OPM/CSC 12% 43% 44% 0.4% 

c. Completing the written decision test 

for OPM/CSC 9% 39% 52% 1% 

d. Completing the panel interview for OPM/CSC 4% 24% 71% 1% 

e. Undergoing interviews, etc. by selecting 

agency 2% 20% 72% 6% 

19. Do you think the selection criteria used for ALJs is relevant to duties actually 
performed? 

Very Somewhat Not 

51% 44% 6% 



ACUS - Survey of Non-SSA AUs 



1101 



20. How important were the following factors in your decision to become an AU? 

Very Somewhat Not 



a. 


Independence of job 


93% 


5% 


2% 


b. 


Challenge of job 


83% 


16% 


1% 


c. 


Salary 


35% 


54% 


11% 


d. 


Prestige of position 


35% 


51% 


14% 


e. 


Enjoyment of government service 


30% 


49% 


21% 


f. 


Perquisites of office 


5% 


33% 


62% 


g- 


Commitment to policy goals 


9% 


31% 


60% 


h. 


Desire to have influence 


9% 


30% 


61% 


i. 


Unhappiness with previous position 


8% 


22% 


70% 


J- 


Desire to travel 


4% 


26% 


70% 


k. 


Experience helpful for further 










advancement in agency 


3% 


7% 


90% 


1. 


Other 


43% 


— 


55% 



21. How would you rate the following descriptions in terms of them being 
appropriate characterizations of the role of an ALJ? 



Very Somewhat Not 



a. Judge/Adjudicator 

b. Important 

c. Independent 

d. Decision-maker 

e. Fact-fmder 

f. Wearer of "Three Hats" 
g- Cog 

h. Referee 



96% 


3% 


1% 


61% 


24% 


14% 


95% 


4% 


1% 


94% 


4% 


2% 


91% 


7% 


2% 


15% 


17% 


69% 


2% 


16% 


82% 


5% 


31% 


64% 



22. How satisfied are you with the following aspects of your present position? 

Very Somewhat Not 

a. Nature of duties 85% 

b. Conditions of employment 55% 

c. Substantive area of law in which you work 72% 

d. Overall satisfaction 72% 



14% 


1% 


34% 


11% 


25% 


3% 


25% 


3% 



1 102 ACUS -- Survey of Non-SSA AUs 



23. How serious are the following problems for ALJs? 

a. Agency interference 

b. Need for independence 

c. Lack of status; poor image 

d. Inadequacy of hearing facilities & staff 
support 

e. Poor salary; lack of prerequisites 

f. Compromise of formal procedures 

g. Mediocrity of some AUs 
h. Need for increase injudicial powers 
i. Need for separation from the agency 
j. Veterans being given preference in the 

selection process 
k. Absence of independent corps of ALJs 

24. To what extent are the following practices appropriate for administrative law 
judges? 



Very 


Somewhat 


Not 


17% 


26% 


57% 


48% 


17% 


35% 


22% 


42% 


36% 


32% 


46% 


23% 


13% 


37% 


50% 


8% 


32% 


60% 


14% 


54% 


32% 


26% 


41% 


33% 


40% 


21% 


40% 


23% 


23% 


55% 


32% 


24% 


45% 



Very Somewhat Not 



a. Taking active role in developing 

the record in a case 57% 

b. Talking with news media about the case while 

hearing is in progress 0.4% 

c. Talking with news media about the case 

after your decision has been made 1 % 

d. Talking with news media about the case after 

agency decision is fmal 1 % 

e. Having lunch or other social contacts with 

agency staff attorneys 2% 

f. Having lunch or other social contacts with private 

attorneys who practice before your agency 0.4% 



37% 


6% 


3% 


97% 


13% 


86% 


15% 


84% 


24% 


74% 


25% 


75% 



ACUS - Survey of Non-SSA AUs 1 103 



Very 


Somewha 


t Not 


33% 


54% 


14% 


16% 


42% 


43% 


49% 


39% 


12% 



g. Suggesting procedural changes to agency 
h. Suggesting changes in substantive pjolicy 

to agency 
i. Urging changes in legislation affecting ALJs 49% 
j. Suggesting other proceedings, investigations, or 

studies you think your agency should 

conduct. 16% 45% 40% 

25. How would you classify the nature of your primary professional experience 
before you became an ALJ? 

(a) 25% Private 

65% Federal Government 

10% State or Local Government 

(b) 79% Litigation 

9% Advisory 

Transactional 

12% Examiner or Other Adjudicator 

26. 94% Male 6% Female 

27. Racial/Ethnic Category: (choose one) 

1% Asian or Pacific Islander 2% Black, not of Hispanic origin 
2% Hispanic 1% American Indian or Alaskan Native 
94% White, not of Hispanic origin 

28. Did you receive veteran's preference for your appointment as an ALJ? 

63 Yes 31. No 

29. Government Service Classification 

AL-3 3% A 4% B 4% C 28% D 29% E 24% F 

AL-2 _8% 
AL-1 2% 

30. In comparison to Federal Judges, do you think you have? 

Greater/More The Same Lesser 

a. Authority 1% 1% 98% 

b. Prestige 0.4% 1% 99% 

c. Freedom in reaching a decision 3% 71% 27% 

d. Complex cases 15% 53% 32% 



1 104 ACUS - Survey of Non-SSA AUs 



Greater/More The Same Lesser 



e. 


Caseload burden 


11% 


44% 


44% 


f. 


Duty to be bound by agency policy 


64% 


31% 


5% 


g- 


Duty to follow rules of evidence 


1% 


55% 


44% 


h. 


Impact on public policy 


4% 


34% 


61% 


i. 


Independence 


1% 


54% 


45% 



89% 


9% 


2% 


89% 


10% 


1% 


90% 


9% 


1% 


84% 


16% 


1% 


51% 


44% 


6% 


14% 


60% 


26% 


67% 


32% 


1% 


61% 


36% 


3% 


93% 


5% 


2% 



31. In comparison to non-AU adjudicators, do you think you have? 

Greater/More The Same Lesser 

a. Authority 

b. Prestige 

c. Freedom in reaching a decision 

d. Complex cases 

e. Caseload burden 

f. Duty to be bound by agency policy 

g. Duty to follow rules of evidence 
h. Impact on public policy 
i. Independence 

32. What undergraduate institution did you attend? (See Appendix IV A. Survey of 
AUs for All Agencies.) 

33. Degree Received 71% B.A. 28% B.S. (Sec Appendix IV A. Survey of 
ALJs for All Agencies.) 

34. Major (See Appendix IV A. Survey of ALJs for All Agencies.) 

35. Did you attend law school? If no, skip to question 39. 

100% yes 0.4% no 

What law school did you attend? (See Appendix IV A. Survey of ALJs for All 
Agencies.) 

36. What was your approximate rank in your law school class? 

24% a. Top 10% 
35% b. Top 25% 
36% c. Upper half 
5% d. Lower half 

37. Were you a member of law review? 19% yes 81% no 



ACUS - Survey of Non-SSA AUs 1 105 



38. Have you had any graduate training other than law school? 

29% yes 72% no 

39. If you have had additional graduate work, what was your field of study? (Sec 
Appendix IV A. Survey of ALJs for All Aeencies.) 

40. Please give us the benefit of any observations that will help in understanding 
your work. (Comments may be written on the back of this page, or an additional 
sheet may be attached.) (See Appendix IV A. Survey of AUs for All 
Agencies.) 



1 106 ACUS -- Survey of AJs 



Appendix IV D 

Survey of 
ADMINISTRATIVE JUDGES 

This questionnaire is a part of a study of the practices and attitudes of 
Administrative Judges ("AJs") and Administrative Law Judges ("ALJs").' 

Please answer each question in the space provided and RETURN THE 
COMPLETED FORM WITHIN ONE WEEK. If you have additional comments, 
please include them. The anonymity of respondents will be preserved. 

1. What undergraduate institution did you attend? 157 Schools 
Degree Received: 56 different majors B.A. 70% B.S. 30% 

2. Did you attend law school? (If no skip to question 6) Yes 95% No 5% 
What law school did you attend? 105 law schools ; prestige law schools 13% 

3. What was your approximate rank in your law school class? 

a. Top 10% 18% c. Upper half 39% 

b. Top 25% 32% d. Lower half 11% 

4. Were you a member of Law Review? Yes 12% No 88% 

5. Have you had any graduate training other than law school? Yes 34% No 66% 

6. If you have had additional graduate work, what was your field of study? 56 
fields of study (Some were duplicates —just characterized slightly differently.) 

7. What is your age? average age - 49 minimum age - 30 maximum age - 74 
8a. Are you male or female? 80% male 20% female 



'Most of the questions in this survey duplicate or parallel those of a survey of AUs by Paula 
P. Burger, JUDGES in Search of a Court: Characteristics, Functions, and Perceptions of 
Federal Administrative Law Judges (1984 & photo, reprint 1985, University Microfilms 
International). Other sources include United Sutes General Accounting Office, SimvEY OF 
Administrattve Law Operations; and Donna Price Cofer, Judges, Bureaucrats, and the 
Question of Independence (1985). 



ACUS -- Survey of AJs 11 07 



8b. Racial/Ethnic Category (Choose one) 

A Asian or Pacific Islander - 3% 

B Black, not of Hispanic origin - 9% 

H Hispanic -3% 

W White, not of Hispanic origin - 84% 

I American Indian or Alaskan Native - 1% 

9. What was the nature of the primary professional experience you had before 
becoming an AJ? Mostly attorneys 

10. Government Service (GS) Classification: 53% at GS-15 

Did you receive veteran's preference for your appointment as an AJ? 
Yes 19% No 81% 

11. How long have you been an AJ at your present agency? 0-31 years (Average of 
8 years) 

12. How long have you been an AJ? 0-30 years (Average of 8 years) 

13. Rate your frequency of engaging in the following reading practices and patterns 
of communications. 



a. Read decisions of other presiding officials 

b. Read final agency decisions 

c. Read decisions of federal courts 

d. Read commercial services, 

industry publications 

e. Confer with superior about difficult cases 

f. Consult with other AJs prior to hearing 

g. Consult with other AJs while case pending 
h. Receive requests for confidential information 
i. Communicate about your case with agency 

staff 14% 29% 57% 

j. Communicate about your case with those 

outside of the agency 3% 5% 92% 

k. Make suggestions to agency officials for 

policy changes 2% 44% 54% 

1. Make suggestions to agency officials for 

procedural changes 2% 58% 39% 



uent. 


Occas. 


Rarely/ 
Never 


59% 


32% 


9% 


92% 


7% 


1% 


75% 


23% 


2% 


36% 


47% 


17% 


17% 


36% 


47% 


29% 


45% 


26% 


32% 


41% 


27% 


1% 


20% 


79% 



7% 


41% 


52% 


1% 


14% 


85% 


20% 


71% 


9% 



1 108 ACUS -- Survey of AJs 



Frequent. Occas. Rarely/ 
Never 

m. Talk with individual members of private 

bar about agency procedures 
n. Disqualify yourself from hearing a case 
o. Attend professional meetings or seminars 
p. Approached through ex parte communication 

which would be prohibited by the APA 1 % 12% 87% 

14. In hearing cases, how often do you engage in any of following practices? (Note: 
only 99 responses to this question.) 



a. Prehearing conferences 

b. Order depositions 

c. Require experts 

d. Request additional evidence 

e. Request issue briefs 

f. Authorize reply briefs 

g. Go "off record" 
h. Hold IN CAMERA proceeding 
i. Question witness directly 
j. Call own witnesses 
k. Certify interlocutory appeals 
1. Certify record to agency head for decision 

(without making initial decisions) 4 96 

m. Admit evidence for 

"whatever it may be worth" 
n. Deliver decisions orally 
o. Grant summary judgment 

15. To what extent do you conceive of your job as involving the following? 

Frequent. Occas. Rarely/ 

a. Determining and marshaling facts 

b. Guaranteeing due process of law 

c. Making credibility determinations 

d. Applying agency policies and regulations 

e. Applying substantive expertise to problems 

f. Interpreting statutes 

g. Effecting the settlement of controversies 
h. Clarifying agency policies and regulations 



?nt. 


Occas. 


Rarely/ 
Never 


61 


23 


16 


7 


29 


64 


10 


36 


54 


29 


53 


18 


24 


49 


27 


27 


43 


30 


17 


54 


29 


6 


27 


67 


71 


18 


11 


5 


16 


79 


0.4 


12 


88 



23 


34 


43 


32 


11 


57 


5 


27 


68 







Never 


98 


2 


0.4 


95 


4 


1 


86 


12 


2 


78 


17 


5 


71 


18 


11 


70 


29 


1 


55 


28 


17 


29 


39 


32 



ACUS -- Survey of AJs 1 1 09 



i. 


Making agency policy 


1 


13 


86 


J- 


Educating the public 


10 


39 


51 


k. 


Balancing interests 


30 


39 


31 


1. 


Protecting the public interest over special 










interests 


21 


28 


51 


m 


. Bringing efficiency to agency proceedings 


47 


40 


13 


n. 


Helping to keep matters out of the federal 










courts 


25 


29 


46 



Rank the three most important of the above. 

1. A = 86% 

2. B = 76% 

3. C = 42% 

16. In reaching your decisions how influential do you consider the following factors? 
[Note: "N.A. " in this question means "Not Appropriate to Consider. ^ 



Very Somewhat Not N..A. 



a. Applicable statutes 

b. Published agency regulations 

c. Federal court precedents 

d. Published agency opinions or decisions 

e. Executive Orders 

f. Staff position as outlined in brief 

g. Decisions of other presiding officials 
h. Public statements or speeches 

by agency officials 
i. Private statements by agency officials 
j. Statements by members of Congress 
k. Your perception of agency policy goals 
1. Your idea of what serves the public interest 
m. Your own standards of fairness 
n. Public Opinion 
o. Your evaluation of the facts of a case 

Rank the three most important of the above.' 

1. A = 84% 

2. C = 69% 

3. O = 54% 



98 


2 


— 


— 


87 


13 


0.4 


— 


90 


8 


1 


1 


86 


10 


4 


0.4 


39 


32 


17 


11 


8 


38 


27 


27 


15 


38 


32 


15 


1 


6 


32 


61 


2 


5 


19 


74 


1 


8 


24 


67 


7 


25 


29 


39 


13 


33 


28 


27 


37 


35 


15 


12 


0.4 


7 


22 


71 


98 


2 


— 


— 



1 1 10 ACUS -- Survey of AJs 



17. After your initial or recommended decision has been written, how frequently do 
you do any of the following things? 

Frequent. Oocas. Rarely/ 
Never 

a. Participate in oral argument before review 
board or agency head 

b. Talk with news media about your decision 

c. Supply written clarification of decision for 
agency staff — 

d. Talk or meet with agency staff to explain 
your decision 

e. Study appeal briefs submitted to review board or 
agency head 

f. Help prepare documents or questions to aid agency 
head or review board in hearing cases on appeal 3 

g. Observe oral argument before review board 
head 

h. Assist in writing of final agency decision, 
order, report 

18. To what extent do you think the following practices are appropriate for 
administrative judges? 

1 - Completely Appropriate 

2 - Sometimes Appropriate/Sometimes Not Appropriate 

3 - Inappropriate 



a. Taking active role in developing the record 
in a case 

b. Talking with news media about the case while 
hearing is in progress 

c. Talking with news media about the case 
after your decision has been made 

d. Talking with news media about the case after 
agency decision is fmal 

e. Having lunch or other social contacts with 
agency staff attorneys 

f. Having lunch or other social contacts with private 
attorneys who practice before your agency 

g. Suggesting procedural changes to agency 



1 


1 


98 


0.4 


3 


97 


0.4 


7 


93 


1 


10 


89 


ir 






8 


24 


68 


ncy 
il 3 


7 


90 


1 


8 


91 


22 


5 


73 



1 


2 


3 


63 


32 


5 


3.4 


6 


94 


2 


21 


77 


4 


25 


71 


11 


49 


40 


e 

3 


51 


46 


42 


44 


14 



ACUS -- Survey of AJs 1111 



1 


2 


3 


30 


41 


29 


31 


39 


30 


31 


46 


23 



h. Suggesting changes in substantive 

policy to agency 
i. Lobbying Congress for changes in legislation 

affecting AJs 
j. Suggesting other proceedings, investigations, or 

studies you think your agency should conduct 31 

19. How much of the total time sp)ent doing your job is devoted to each of the 
following activities? Estimate the overall proportion of time, even if from week 
to week the exact proportions may vary. Use percentage figures and ignore 
those activities that are not relevant to your work. 

Avg. Percent 

Time of AJs 

75% 13% a. Pretrial preparation, reading, study 

55% 10% b. Conducting prehearing conferences and negotiations 

86% 25% c. Presiding at formal hearings, rulings on motions 

91% 37% d. Making decisions and writing decisions 

20% 5% c. Travel 

90% 9% f. General administrative duties, correspondence, 

professional meetings 
80% 2% g. Other 



20. How would you rate the following as qualities which should be sought in 
candidates for positions as AJs? [Note: Ratings used below are "Indispensable', 
"Important" , and "Little or no Importance".] 

Indispen. Import. Little/No 
Import. 

a. Integrity 

b. Law school degree 

c. Experience practicing administrative law 

d. Judicial temperament 

e. Experience in substantive area of law 

f. Neat personal appearance 

g. Sense of humor 
h. Trial experience 
i. Technical expertise 
j. Writing ability 
k. Public speaking ability 
1. Analytical skill and reasoning ability 



98 


3 


— 


83 


14 


3 


21 


60 


19 


82 


18 


0.4 


33 


56 


11 


16 


65 


18 


16 


56 


28 


19 


55 


26 


24 


55 


21 


73 


27 


— 


16 


57 


27 


95 


5 


— 



1112 



ACUS -- Survey of AJs 



21. How would you rate the following factors in terms of their importance in your 
decision to become an AJ? 



a. Independence of job 

b. Challenge of job 

c. Salary 

d. Prestige of position 

e. Enjoyment of government service 

f. Perquisites of office 

g. Commitment to policy goals 
h. Desire to have influence 

i. Unhappiness with previous position 

j. Desire to travel 

k. Experience helpful for further advancement 

in agency 
1. Other (specify) 



Very Moderately Not 



82 


15 


3 


80 


20 




33 


56 


12 


26 


59 


15 


T) 


55 


23 


3 


26 


71 


7 


40 


53 


6 


39 


56 


8 


13 


80 


1 


15 


85 


5 


16 


80 



Rank the three most important of the above. 

1. B = 91% 

2. A = 90% 

3. C = 44% 

22. How would you describe your role in the administrative process? (Separate 
sheet.) 



23. The following descriptions are appropriate characterizations of the role of an 
AJ. [Note: 'Not' in this question means 'Not at all Appropriate. '] 

Very Somewhat Not 

a. Judge/Adjudicator 

b. Important 

c. Independent 

d. Decision-maker 

e. Fact-fmder 

f. Wearer of "Three Hats" 
g- Cog 
h. Referee 



99 


1 


— 


58 


31 


11 


91 


9 


0.4 


99 


1 


— 


97 


3 


0.4 


15 


21 


64 


3 


23 


74 


16 


40 


44 



ACUS -- Survey of AJs 



1113 



24. How significant are any of the following problems in your work? [Note: 
Column headings mean "Frequently a Problem "; "Sometimes a Problem "; and "Not a 
Problem".] 

Freq. Sometimes Not 

a. Delay in proceedings 

b. Ambiguity in the law you must apply 

c. Too great a caseload 

d. Cases overly complex in technical sense 

e. Lack of direction from agency officials 

about policies 

f. Lack of agency standards for review of 
AJ decisions 

g. Pressure from agency officials for 
faster decisions 

h. Pressure from agency officials for 

different decisions 
i. Review of your decisions by persons you 

think unqualified 
j. Lack of procedural uniformity among agencies 
k. Lack of procedural uniformity within agency 

for different cases 
1. Too close supervision of work 
m. Threats to independence of judgment 

(Describe) * 

n. Other 



22 


63 


15 


13 


70 


17 


48 


37 


15 


5 


50 


45 


4 


30 


66 


7 


21 


72 


29 


30 


41 


2 


16 


82 


7 


28 


65 


4 


17 


79 


3 


30 


67 


4 


17 


79 



10 



18 



72 



25. How would you rate your level of satisfaction with your present position? [Note: 
Column headings means "Very Satisfied"; "Moderately Satisfied"; and 
"Satisfied".] 

Very Mod. Sat. Satisfied 

a. Nature of duties 

b. Conditions of employment 

c. Substantive area of law in which you work 

d. Overall satisfaction 



77 


22 


1 


34 


44 


22 


75 


24 


1 


51 


46 


3 



Agree Disagree 


23 


66 


22 


55 


34 


43 


38 


29 


42 


24 


18 


78 


36 


57 


32 


33 


20 


75 



1114 ACUS -- Survey of AJs 



26. The following are serious problems affecting AJs. 

Strongly Agree 

a. Agency interference 11 

b. Need for more independence from agency 

supervision 23 

c. Lack of status; poor image 23 

d. Inadequacy of hearing facilities and staff support33 

e. Poor salary; lack of perquisites 34 

f. Formal procedures too frequently compromised 5 

g. Mediocrity of some AJs 7 
h. Need for increase in judicial powers 35 
i. Inadequate policy guidance 5 

27. Everyone occasionally feels bothered by certain kinds of things in their work. 
Below is a list of things that might sometimes bother AJs. Please indicate how 
frequently you feel bothered by each of them. [1 - Almost Never; 2 - Rarely; 3 - 
Sometimes; 4 - Rather Often; 5 - Nearly All the Time] 

12 3 4 5 

a. Thinking that the amount of work you 
have to do may interfere with how well 

it gets done. 13 13 37 23 14 

b. Feeling that you have too little 
authority to carry out the responsibilities 
assigned to you. 

c. Feeling that you can't get out 
your work. 

d. Thinking that there are too many reviews 
of your work by agency officials. 

e. Feeling that you have to do things in 
your work that are against your better 
judgment. 

f . Feeling that your job tends to interfere 
with your family life. 

g. Feeling that you're not qualified to 
handle your work. 

h. Feeling that you have too heavy a 

work load, 
i. Thinking that agency officials who 

review your work aren't nearly as 

qualified as you are. 43 18 25 



31 


28 


25 


11 


5 


24 


28 


32 


11 


5 


50 


23 


17 


7 


3 


47 


28 


21 


3 


1 


35 


28 


28 


7 


2 


83 


12 


4 





1 


14 


18 


33 


18 


17 



ACUS -- Survey of AJs 1115 



j. Thinking that others who perform your 
type of work (e.g., District Court 
Judges) are accorded more deference 
than you are. 15 14 24 16 31 

28. In comparison to ALJs, do you think you have? 







Greater 


The Same 1 


Less< 


a. 


Independence from agency supervision 


32 


26 


42 


b. 


Authority 


29 


32 


39 


c. 


Status 


14 


14 


72 


d. 


Staff report 


4 


31 


65 


e. 


Caseload burden 


57 


36 


7 


f. 


Duty to be bound agency policy 


17 


54 


28 



g. Relevance of selection criteria to duties 28 63 

Thank you for completing this questionnaire. 



1116 



ACUS - AU Statistics 



Appendix V A 



v.-r^' Avj^/" 



ll«l ISMCS Id ». J «fi', IC««tS. 



: 


,— — W/f i^^lco.^,1 




i 


, .ao.U.n,, 










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f: 




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m; 


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1 












U'. 




65 u 


15 u 


1? ;? 


t. i: 


(• 


.- i 








H /( J.Oit 


.. ... 


15.50 


11.12 


85- 


e- 


- \ 






^^ 


n <'•' J.J5J 


ie.i6 


61.18 


15.52 


n.ti 


85.5; ' I- •' 1 


....n 




e 


.. s< o.«u 


18. OC 


"«V5t 


W.6J 


11,78 


82 « 


e: 


x 1 








i" H ' O.JOX 


17. 7S 


^9 65 


ir?5 


12.40 


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f 


M-2 


— ^6 on 


It " 


fti.Jl 


1501 


12 24 


8) '; 


e> 




10I«l 


111 


MU 


100. MX 


le o 


M.« 


15 1? 


12 21 


8- 42 


fc: 




Ml 


«0. 


1 


SOS 


UD 


„ 


*.l 


I 


•^ 


108S 


BJ.irt 


18 4^ 


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15.01 


12.18 


84..? 


f 


;. 


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??» 


U.43X 


IS 5? 


tsii 


15. 6i 1 1?.5- 


8-4, 


8- 


5! 


TOItl 


OU 


100.001 


18 tj 


6i.S8 


15.1? 


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8- 4; 


fc 


T7 


Vtl 


KO. 


X- 


SOS 


t* 


ri 


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>S 






n 


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15.15 


12.04 


85.6- 


«3 


6. 


, »,*., 


t» 


J1.94X 


18. tt 


«V61 


U.91 


12.01 


84.?- 


85 


2^ 




r»6 


60. sex 


18. U 


65. 1« 


15.22 


12. J4 


8. 6.: 


». 


»: 


tot*i 


nu 


100. oox 


It.tJ 


6i.58 




12.21 


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6< 


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II4CC 




w. 


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MS 


1* 


„ 


Pil 


1 'S ( 


Uhil. 




«7 


<*' n 


w.on 


10. oe 


67.01 


IS. 98 


12.21 


86. 2- 1 


9^.65 


• I»c» 




16 


t... 


J.84X 


1«.00 


65.05 


16.65 


11. e6 


esc, 1 


e=.M 






U 


V- 


j.sn 


19. so 


65.28 


15.86 


11.S6 


66 r, 1 


«-..4j j 


».!». 




1 


c t% 


0.2« 


1«.00 


TO. SO 


19.00 


15.57 


88.. 1 


ea rs 


*. I>«4tan 




, 


* li- 


0.2(X 


18.00 


S2.80 


16.00 


12.07 


e2.e. 1 


8'. 66 


Wn»no-« 


vl 




26 


_ 


6.77X 


K.SO 


67.62 


16.12 


11.96 


»4.9i? 


e« 92 


TOTM. 
«X 


«? 


tu 


ipo.oox 


1».0S 


66.ee 


16.02 


12.16 


66.14 


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tos 


I* 


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w> 


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66.48 


is.es 


12.09 


66.0 1 


•C.72 




u 


11.0m 


19.11 


70.41 


'.r.41 


12.74 


67.0- i 


87. J« 


t01*l 


tis 


100. oox 


19. C5 


66. ee 


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65.66 


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12 05 


65.71 


9C.71 


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19.6* 


69.45 


17.35 


12.47 


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64.07 


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OS 


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16.02 




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18.14 


63.77 


14.59 


12.29 


63.65 


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r\t ,.m 


17.55 


S4.17 


14.09 


n.co 


ei.i: 


61.64 


• i.l»«ie 




20 


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17.15 


55.31 


14.55 


11.47 


ec.*7 


61.67 


»•••" 




7 


( ■)•! 0.99X 


17.66 


62. S4 


11.71 


11.24 


ty.r: 


61.69 


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1 


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64.90 


20.00 


15.6 


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. 




203 


— 2e.7vx 


17.78 


63.85 


14.60 


12 21 


62.«C 


63.61 




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TOS 




17.^ 


45. 2* 


U.61 


12.20 


63.25 


ft4..44 


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76.6TX 


17.«9 


63.23 


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12 22 


63.23 


64. 7S 


u»^« 


U9 


21. UX 


17.97 


63.30 


IS. 00 


12.2 


63 31 


63.44 


tOI»l 


70S 


10C.0OX 


17.99 


63.24 


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12.20 


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64.48 


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9328 


S »«lnl 


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17.66 


61.06 


13.94 


1-97 


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16.67 


65.92 


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ACUS -- Office of AUs 



1117 



Appendix V B 



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1118 



ACUS -- ALJ Exam Changes 



Appendix V C 



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ACUS - Quality RAhfKiNG Factors 



1119 



Appendix V D 



REQUEST AND JUSTIflCATlON FOR 

SELECTIVE FACTORS AND QUALITY RANKING FACTORS 

[Attach to SF 39] 



Certificate No 
Date Issued 



Requesting Agency. 



Req'jcsi No 
Date 



Title. Senes. and Grade of Vacancy 



Definitions: ^'ou may request thai special qualifications of two lypes be considered by the CSC in iis evalu3i:on o( eligibles 
for certification ( I ) Sctrcine Facton muvi be skills, knowledges, abilities or other worker characteristics bnsic to end cisential 
lor satisfactory performa/ice of the job; i e . a prerequisite to appointment These represent minimum requirements in addition 
to or more specific than X- 1 18 standards (2) Quality Ranking Facton must be skills, knowledges, abili'ies. or other worker 
characteristics which could be exp)ecicd to result in superior performance on the )ob Selective factors may be used for 
screening (in or out) purposes; quality ranking factors will not be used for screening, but may be used oS ranking cntena 



Instructions: This fcmi must be accompanied by a description of ihe position to be filled The rcqut-st and justification for 
selective and/or quality ranking facioi^ should follow this formal: (I) Esch selective or quality r.inkinj factor must be stated 
in terms of a knowledge, a skill, an ability, or other worker characteristic (2) List the duties or tasks the incumbent will 
perform that require the possession of the requested knowledge, skill, or ability, or that could better be performed if he or she 
possessed the knowledge, skill, or ability (3) Optional: Indicate what experience, education, or o;her qualiHcaiions provide 
evidence of possession of the knowledge, skill, or ability 



SELECTIVE FACTOfW 



These special or additional knowledges, 
skills, or abilities are needed for this 
position 



Because the incumbent is expected to 
perform this work (Provide a clear de- 
scription or a specific reference to an 
item in the position description) 



These may be appropriate evidences of 
necessary qualifications (optional) 



le' fliic/ii 



US. C»v«l Scv^* Cc»»m«»».; 



.H*f rrM o«p J37 s»< c-1? 



1120 



ACUS ~ Quality Ranking Factors 



SlMndtra rorm r9A 



QUALirr RANKING FACTORS 



Thcic special or addiiional knowledges. 
jkilis, or abilities are desirable for this 
position 



Because tbe incumbent is expected to 
perform this work (Provide a clear 
description or a specific reference to an 
Item in the position descripuon) 



These may be appropriate evidences of 
superior qualificjiions (optional) 



Addrtional Agency Remarks: 



Sitnaturt ««W Till* ef Appointing Offiter 



For CSC Use: 



Sigmtmrt el CSC E* 



ACUS - Bibliography 



Books 



BIBLIOGRAPHY 



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Burger, Paula, Judges in Search of a Court: 
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Chamberlain, Joseph; Dowling, Noel; and Hays, Paul, The 
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Cofer, Donna, Judges, Bureaucrats and the Question of 
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Dixon, Robert G., Jr., Social Security Disability and Mass 
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Mashaw, Jerry L., Bureaucratic Justice: Managing Soclm- 
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Mashaw, Jerry L., et. al., SocL\L Security Hearings and 
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Miller, Edward, AN Administrative Appraisal of the 
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Industrial Research Unit, Labor Relations and Public Policy 
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Musolf, Lloyd D., Federal Examiners and the Conflict of 
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Studies in Historical and Political Science, Series LXX, 
Number 1, The Johns Hopkins Press, 1953; reprinted by 
Greenwood Press, Inc., Westport, CT, 1979. 



1 1 22 ACUS -- Bibliography 



Rich, Malcolm C, and Brucar, Wayne E., The CENTRAL 
Panel System for Administrative Law Judges: A 
Survey of Seven States. American Judicature Society; 
University Publications of America, Inc., Frederick, MD, 
1983. 



Articles 



Abrams, Norman, Administrative Law Judge Systems: The 

California View, 20 ADMIN. L. Rev. 487 (1977). 
Allen, William, Administrative Actions, Paper delivered to 

[unidentified] Institute (November, 1981). [Mr. Allen is a 

partner, Covington and Burling, Washington, D.C.] 
Ames, H.C., The Hearing Examiner and the Riss Decision, 18 

ICCPrac. J. 729(1951). 
Asimow, Michael, When the Curtain Falls: Separation of 

Functions in the Federal Administrative Agencies y 81 COLUM. 

L. Rev. 759(1981). 
Auerbach, Carl A., Scope of Authority of Federal Administrative 

Agencies to Delegate Decision-Making to Hearing Examiners, 

48 Minn. L. Rev. 823 (1964). 
Benkin, Isaac D., The Shadow World of Administrative Law 

Judges, 22 Judges J. 20 (Fall 1983). 
Berg, Richard, Re-examining Policy Procedures: The Choice 

Between Rulemaking and Adjudication, 38 ADMIN. L. Rev. 

149 (1986). 
Bloomfield, David S., Disability Claims Under the Social 

Security Aa: A Praaitioner's Guide to Administrative 

Procedures, 6 Cap. U.L. Rev. 371 (1977). 
Bok, Derek C, A Flawed System, Howard Magazine, May- 
June 1983, p. 38. 
Boyd, Robert R.,./4 Hearing Examiner Comments on the APA 

and the Rule-Making or Adjudication Controversy, 1 1 Wm. & 

Mary L. Rev. 424(1969). 
Caldwell, Louis G., A Federal Administrative Court, 84 U. Pa. 

L. Rev. 970 (1936). 
Caldwell, Louis G., 77?^ Proposed Federal Administratix'e 

Court: The Arguments for Its Adoption, 36 A.B.A. J. 13 

(1950). 



ACUS -- Bibliography 1 123 



Gary, William L., Why I Oppose the Divorce of the Judicial 

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Empirical Evidence and Normative Analysis, 66 B.U.L. Rev. 

1 (1986). 
Champagne, Anthony and Danube, Amos, An Empirical 

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Decisions of Administrative Law Judges, 31 Lab. L.J. 531 

(1980). 
Conmient, Social Security Hearings for the Disabled— Who 

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929 (1990). 
Cramton, Roger C, A Title Change for Federal Hearing 

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Administrative Procedure Concerning Appointment and Status 

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Davis, Frederick, Judicialization of Administrative Law: The 

Trial-Type Hearing and the Changing Status of the Hearing 

Officer, 1977 DukeL.J. 389. 
De Seife, Rudolphe J. A., A Proposal for the Estabishment of an 

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De Seife, Rudolphe J. A., Administrative Law Reform: A Focus 

on the Administrative Law Judge, 13 Val. U.L. Rev. 229 

(1979). 
Dixon, Robert G. Jr., The Welfare State and Mass Justice: A 

Warning from the Social Security Disability Program, 1972 

DukeL.J. 681. 
Dullea, Charles J., Development of the Personnel Program for 

Administrative Law Judges, 25 Admin. L. Rev. 41 (1973). 
Edles, Gary, The ICC Hearing Process: A Cost-Benefit 

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Resolution, 16 Trans. L. J. 99 (1987). 



1 1 24 ACUS -- Bibliography 



Etelson, Jesse, The New AU Examination: A Bright, Shining 

Lie Redux, 43 Admin. L. Rev. 185 (1991). 
Fallon, Richard, Enforcing Aviation Safety Regulations: The 

Case for a Split-Enforcement Model of Agency Adjudication, 4 

ADMIN. L.J. 389(1991). 
Fallon, Richard, Of Legislative Courts, Administrative Agencies 

and Article III, 101 Harv. L. Rev. 915 (1988). 
Fauver, William, An Agenda for Investigation: Should the AFA 

Be Amended to Provide Standards for Agency Review of 

Administrative Trials? 1973 DUKE L.J. 135. 
Federal Trial Examiners Seek to Enjoin Civil Service 

Commission Regulations, 19 ICC Prac. J. 369 (1952). 
Freedman, James O., Review Boards in the Administrative 

Process, 117 U. Pa. L. Rev. 546 (1969). 
Friendly, Henry J., Some Kind of Hearing, 123 U. Pa. L. Rev. 

1267 (1975). 
Frye, John, Study ofNon-AU Hearing Programs, 44 Admin. L. 

Rev. 261 (1992) 
Fuchs, Ralph F., The Hearing Examiner Fiasco Under The 

Administrative Procedure Aa , 63 Harv. L. Rev. 737 (1950). 
Fuchs, Ralph F., Hearing Commissioners, 30 N.Y.U. L. Rev. 

1342 (1955). 
Fuchs, Ralph F., The Hearing Officer Problem—Sympton and 

Symbol, 40 CORNELL L.Q. 281 (1955). 
Gardner, Warner, The Procedures by Which Informal Action is 

Taken, 24 Admin. L. Rev. 155 (1972). 
Gifford, Daniel, Adjudication in Independent Tribunals: The 

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Gladstone, Arthur A., Commentary: The Adjudication Process 

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Graham, Michael, Application of the Rules of Evidence in 

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360 (1976). 
Harves, Duane, The 1981 Model State Administrative Procedure 

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Hanvood, Gerald, How Necessary is the Administrative Law 

Judge? 6 W. New Eng. L. Rev. 793 (1984). 



ACUS -- Bibliography 1 1 25 



Hayes, Social Security Disability and the Administrative Law' 

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Hayes, Hearing Examiner Regulations Promulgated Under 

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J. 189(1951). 
Hayes, Hearing Examiner Status— A Recurrent Problem in 

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Hector, Lx)uis J., Problems of the CAB and the Independent 

Regulatory Commission, 69 Yale L.J. 931 (1960). 
Hector, Louis J., The Hidden Judiciary and What It Does, U.S. 

News & World Report, Nov. 1, 1982. 
Heifetz, Alan W., AUs, ADR, an ADP: The Future of 

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(1992) 
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Objective, Subjective, and the Speculative: Assessing 

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Help, 37 J. OF THE Am. Judicature Soc., 182 (1954). 
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Judging the Judges - An Outsize Job - and Getting Bigger, Time, 

August 20, 1979, p. 49. 
Joost, Robert and Battaglia, Nancy, The Board for Correction of 

Military Records of the Coast Guard: A Unique Dispute 

Resolution Mechanism, 41 ADMIN. L. J. 441 (1989). 
Katcher, Monroe I., New York's Elusive Administrative Law 

Judge, 54 N.Y. St. B. J. 80 (1982). 
Kauper, Karen, Protecting the Independence of Administratix^e 

Law Judges: A Model Administrative Law Judge Corps 

Statute, 18 J. OF Law Reform 537 (1985). 
Kinnane, Charles H., Administrative Law: Federal Trial 

Examiners and the Ramspeck Case, 4 De Paul L. Rev. 1 

(1954). 
Klement, Alice, 'Hidden Judiciary' Fights Back, Nat. L. J., 

September 24, 1979, p. 18. 



1 126 ACUS -- Bibliography 



Koch, Jr., Charles H. and Koplow, David A., The Fourth Bite 

at the Apple: A Study of the Operation and Utility of the 

Social Security Administration's Appeals Council, 17 Fla. St. 

L. Rev. 199 (1990). 
Levant, Michael, A Unified Corps of Administrative Law Judges 

— The Transition From a Concept to an Eventual Reality, 6 W. 

NewEng. L. Rev. 705 (1984). 
Levinson, Harold, Elements of the Administrative Process: 

Formal, Semi-Formal and Free-Form Models, 26 AM. U. L. 

Rev. 872 (1977). 
Levinson, Harold, Professional Responsibility Issues in 

Administrative Adjudication, 2 BYU J. OF PuB. Law 219 

(1988). 
Levinson, Harold, The Proposed Administrative Law Judge 

Corps: An Incomplete But Important Reform Effort, 19 New 

Eng. L. Rev. 733 (1983-84). 
Liebman, Ernst., Quality Control for Administrative Law 

Judges, 18 Judges J. 15 (1979). 
Lindh, Frank, An Examination of the Proposed 'Closed Record" 

Administrative Law Judge Hearing in the Social Security 

Disability Program, 6 W. New Eng. L. Rev. 745 (1984). 
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Corps: Its Value and Relation to the Traditional Justice 

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Congress, 20 W. PoL. Q. 65 (1967). 
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J. 635 (1966). 
Lubbers, Jeffrey S., A Unified Corps of AUs: A Proposal to 

Test the Idea at the Federal Level, 68 JUDICATURE 266 (1981). 
Lubbers, Jeffrey S., Federal Administrative Law Judges: A 

Focus on Our Invisible Judiciary, 31 ADMIN. L. REV. 109 

(1981). 
Lubbers, Jeffrey S., Federal Agency Adjudications: Trying to 

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(1984). 
Lubbers, Jeffrey S., Management of Federal Agency 

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Lussier, Edward, The Role of the Article I "Trial Judge", 6 W. 

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Mans, Thomas C, Selecting the 'Hidden Judiciary': How the 

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Marquardt, Ronald G. and Wheat, Edward M., Case Processing 

by Administrative Agencies: Administrative Law Judge 

Perceptions vs. Reality, Paper presented to Western Political 

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Marquardt, Ronald G. and Wheat, Edward M., The Developing 

Concept of an Administrative Court, 33 Admin. L.J. 301 

(1981). 
Marquardt, Ronald G. and Wheat, Edward M., Hidden 

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Marzloff, George Ernest, Delay in Review of Initial Decisions: 

The Case for Giving More Finality to the Findings of Fact of 

the Administrative Law Judge, 35 Wash. & Lee L. Rev. 393 

(1978). 
Miller, C.A., Federal Trial Examiners Should Not Be Subject to 

Presidential Appointment; Address, 21 ICC Prac. J. 4 (1953). 
Miller, Edward B., The Tangled Path to an Administrative 

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Miller, John T., Jr., The Civil Service Commission's New 

Hearing Examiner Recruitment Program, 17 Admin. L. Rev. 

104 (1964). 
Miller, John T., Jr., Continuing Forum for Reform of 

Administrative Process, 27 ADMIN. L. Rev. 205 (1975). 
Miller, John T., Jr., The Education and Development of 

Administrative Law Judges, 25 ADMIN. L. Rev. 7 (1973). 
Miller, John T., Jr., Hearing Cases Before Several Agencies- 
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Miller, John T., Jr., The Need for Improvements in the Hearing 

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1128 ACUS -- Bibliography 



Miller, John T. , Jr. , The Vice of Selective Certification in the 

Appointment of Hearing Examiners, 20 Admin. L. Rev. 477 

(1968). 
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Minow, Newton N., Suggestions for Improvements in the 

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Mogel, William A., The Effect of a Claim of Privilege upon the 

Subpoena Power of an Administrative Law Judge, 28 DRAKE 

L. Rev. 67 (1978-79). 
Morse, Marvin, The Administrative Law Judge — A New 

Direaion For the Corpsl 30 FED. Bar News & J. 398 (1983). 
Mosher, Lawrence, Here Come the Administrative Law Judges, 

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(November 1991). 
Musolf, Lloyd D., Independent Hearing Officers: The 

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Va. L. Rev. 996 (1971). 
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Constitutionality and Effea on Federal Personnel Practices of 

Veterans' Preference Legislation, 44 Geo. Wash. L. Rev. 

623 (1976). 
Palmer, Victor, The Evolving Role of Administrative Law 

Judges, 19 NewEng. L. Rev. 755 (1983-84). 
Palmer, Victor, and Bernstein, Edwin, Establishing Federal 

Administrative Law Judges as an Independent Corps: The 

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Odyssey of an Administrative Law Judge, 27 ADMIN. L. Rev. 

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ACUS -- Bibliography 1 129 



Pops, Gerald M., Judicialization of Federal Administrative Law 

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Reflections on the Conduct of an Administrative Hearing, Panel 

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Rhyne, Charles S., Developing the Prestige of the Hearing 

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Rich, Malcolm C, ed.. The Central Panel System: A New 

Framework for the Use of Administrative Law Judges, 65 

Judicature 232 (1981). 
Rich, Malcolm C, The Central Panel System and the 

Decisionmaking Independence of Administrative Law Judges: 

Lessons for a Proposed Federal Program, 6 W. New Eng. L. 

Rev. 643 (1984). 
Robie, William and Morse, Marvin, The Federal Executive 

Branch Adjudicator: Alive (and) Well Outside the 

Administrative Procedure Actl 33 FED. Bar News & J. 133 

(March 1986). 
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21 ICCPrac. J. 187(1953). 
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Civil Money Penalties 



ACUS -- BffiLIOGRAPHY 1 133 



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